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SPEECH 



MR. FESSENDEN, OF MAINE, 



ON 



THE MESSAGE OF THE PRESIDENT TRANSMITTING 
THE LECOMPTON CONSTITUTION. 



Delivered in the United States Senate, Februarv 8, 1858. 



The President's message, transmitting the Le- 
compton Constitution, being under consideratioQ, 
and Mr. Douglas having intimated &" desire to 
take up a resolution oC inquiry relative to certain 
proceedings in Kansas, which motion was object- 
ed to and waived — 

Mr. FESSENDEN proceeded to address the 
Senate, as follows : 

Mr. President : 1 was perfectly willing to give 
way for the purpose of allowing the Senator from 
Illinois to introduce his motion, in order that the 
Senate might pass upon the question whether or 
not any more information was to be afforded to us, 
officially, than we have already received. I was 
suspicious that it was not the desire of the ma- 
jority of the Senate that the resolution of the 
Senator from Illinois should pass, and that the 
information sought for should be obtained. I 
had no idea that its passage would be permitted ; 
but yet I was willing to make the experiment. 
If, as a matter of fact, it had appeared to- me 
probable — if I had supposed there was any rea- 
son to believe — that an investigation would be 
had with regard to the allegations that have 
been maiJe, of fraud in one stage or another of 
this proreding in Kansas, I should probably have 
been willing, very willing, to waive any remarks 
on the general question until that information 
was obtained. The inquiry, however, that I put 
to the honorable Senator from Missouri, [Mr. 
Green,] the other day, as to the intentions of the 
Committee on Territories, and the answer I re- 
ceived from him, satisfied me that we should 
have no other information afforded to this body, 
officially, than that which we now have ; and, 
therefore, I see no reason why I, or any other 
Senator who desires to do so, may not as well 
proceed to comment on this message of tli*^ 
President now, as to defer remarks until we 
have a report on the subject from the tf^mmittee. 

Mr. GREEN. I thought I remarked — I know 
it was my intention to do so — that the committee 
nad never considered that point, and that I was 
not authorized to "poak for the committee ; but 



that, as far as I was concerned, I would under- 
take to carry out whatever instructions the Sen- 
ate gave me. 

Mr FESSENDEN. I understood the answer 
of the Senator to say exactly that ; and strange 
as it may seem to him, that answer satisfied me 
of what 1 have just stated, that we should have 
no more official information on the subject. Other 
Senators may draw a different conclusion, but 
such was mine. I was remarking that, under the 
circumstances, I saw no reason why any Senator 
might not as well proceed now to comment on 
this message of the President, and on the various 
topics connected with it, as to wait until we shall 
have a formal report from the committee on the 
suV>ject. 

I think, sir, that the message has been drawn 
with care and with design. It is an argument 
presented to the country — intended as an argu- 
ment which should affect and influence the minds 
of the people in reference to the great question 
which is soon to be tried before this body, and 
decided, so far as we are able to decide it. I 
deem it, therefore, not unimportant that the 
views of some gentlemen, to some extent, should 
be expressed with reference to that message, and 
that the country should understand that, although 
the officer highest in position entertains certain 
opitiions which he has expressed on this subject, 
others, who are in a less degree, perhaps, the 
representatives of the people, entertain different 
opinions, take a different view of the facts, and 
have something to say with reference to the state- 
ments that have been made. In the comments 
which I propose to make, I do not design to go 
much further than to make a statement of the 
case, as I understand it. Whether, with theim- 
I)ressions prevailing on my mind, I shall be able 
to make a fair statement of it, will be determined 
by the result. I certitinly shall endeavor to 
do-so. 

The message which we have received, trans- 
mitting the Lecompton Constitution to us, is cer- 
tainly, in some respects, a singular one ; and 
whatever demerits it may have, there is one 
thing about it which is observable, and which I 



rG^^ 



teust may ia somo manner relieve the diflicnlties 
which seem to have pressed on the mind of my 
respected friend from New York, [Mr. Seward.] 
In his remarlis on the army bill, he deemed it to 
be a matter of consequence that troops should 
be raised ia order to quell the disturbances in 
the Territory of Utah, and seemed to be of the 
impression that other questions were in such a 
state of forwardness towards a settlement, that 
the Government could not need the increase of 
force for which it asked with reference to any 
)ther subject than the Territory of Utah. Now 
the President tells us very distinctly, in his mes- 
sage, that he has need of troops, and may con- 
Inue to need them, not only for the Territory of 
ftah, but also for certain purposes in the Terri- 
ory of Kansas ; for he says, distinctly, that in 
:ase the Constitution should be accepted, and 
vansas become a State, he will then be able to 
withdraw the troops from Kansas, and use them 
where they are more needed — distinctly refer- 
ring to the Territory of Utah. We may infer, 
then, that if the Lecompton Constitution should 
not happen to be acceptable to Congress, troops 
are still to be kept in Kansas for the purposes 
for which they have been used there heretofore. 
I cannot believe that the honorable Senator 
from New York can in any manner justify the 
keeping of those troops in Kansas, or can in any 
manner believe there is any necessity for keeping 
them there, in the existing state of things. 

The President clearly intimates that he will be 
obliged to keep the troops there if the Lecompton 
Constitution should not prove acceptable, and 
Kansas be not admitted with it. That is his con- 
clusion ; for if, as he says, he can withdraw them 
in case Kansas becomes a State, it is implied 
that he cannot withdraw them unless Kansas 
becomes a State. That is the clear inference. 
That is smgular, for the reason that, at the pres- 
ent time, we know the fact that the Territory of 
Kansas is under the control of what is called a 
Free State, and what gentlemen choose to call 
an •Abolition, Legislature. There is no difficulty 
in Kansas now. Those who are denounced as 
" rebels," but who are in fact the Free State 
party of Kansas, and a majority of the people of 
Kansas, have control of the Government of Kan- 
sas at the present time. If this Constimtion 
should not be adopted, and Kansas should not 
become a State under it, what is the result? 
That the power is in the hands of the rebels; for 
rebellion, as it has been called, has things all its 
own way. 

I see no. necessity on the part of the President 
to keep troops there for the purpose of aiding in 
establishing the Government, which is going on 
so much according to the will of those whom he 
has been accustomed, and desired, to control by 
the use of the troops. It is a very singular dec- 
laration on the part of the President. What? 
That unless Kansas be admitted as a State under 
this Constitution, he will be obliged to keep 
troops there — for what purpose? For the pur- 
pose of controlling the Free State Government of 
Kansas ; for the purpose of controlling the ma- 
jority who now have the Government in their 
own hands. Is that the game that is to be 



niaynd ? Is Kansas, while it remains a Territo- 
ry, still to be held under military domination, 
-imply for the reason that those whom he has 
heretofore chosen to denounce as rebels are now 
in the possession of the Government, and will 
continue so unless Kansas becomes a State un- 
der this Constitution?. It is a very singular dec- 
laration to put forth to the country, and yet such 
i^^ the plain infeience from the message he has 
communicated to u,-!. 

Sir, I admit that this message is entitled to be 
treated with respect, for the reason that it comes 
from an officer who is always to be spoken of 
with respect, so far as those associated with him 
in the Government are able to do so. 

Mr. SEWARD. As the honorable Senator is 
passing to another point, I wish to make an ex- 
planation. I think the honorable Senator from 
Maine has probably fallen into some error, by not 
considering the ett'oct of all 1 have said in regard 
to the army question. I will state it once more, 
in order to remove a misripprehension from his 
mind. I stated, in my last speech on that sub- 
ject, that I spoke with great diffidence on that 
point, because I was not half convinced myself. 
1 Hcrran with that remark. 1 stated that my dif- 
(iculty arose in not knowing the future in Kansas, 
ind the future operations in Utah. If I knew 
.vhat was to be done in regard to Kansas, and if 
1 knew what was to happen in Utah, I should 
^ee my course as clear as others ; but, on exam- 
ination of the whole subject, I came to the con- 
clusion that there would be such a state ot things 
in Kansas as woulii oblige the President to with- 
draw the troops. That state of things I considered 
in the first place to be the admission of Kansas 
as a State during the present session of Congress ; 
or, in the next place, the leaving of Kansas where 
she is, without bringing her in as a slave State 
under the Lecompton Constitution. I had no 
belief then, and 1 have not now, that an Admin- 
istration would be so infatuated as to endeavor 
to keep an army there, though such an inference 
may be drawn from the President's message. 
On the other hand, I have my own mode of rea- 
soning, which brings me to the conclusion that 
there are to be disasters in Utah which to-day 
do not appear so distinctly to the vision of other 
persons, and I was obliged to decide on the queg- 
tio'i then when I spoke. 

Under these circumstances, and having these 
opinions, I certainly should give my support to 
the measure which I proposed, which was the 
employment of an additional number of men with 
reference distinctly to their operation in Utah, 
and their being disbanded when that difficulty 
\$a3 through. What circumstances may change 
the case, I do not know. I stated at the same 
time, most distinctly, that the President would 
never obtain my vote, nor the vote of any other 
person, if I had any influence with him, to retain 
an army in Kansas, the use of which was to main- 
tain the Lecompton Constitution, or to maintain 
Federal authority in the Territory, against the 
will of the people. That is my position now. 
If that should be the state of the case, (as the 
Senator thinks it will be,) I shall vote with him. 
If, on the other hand, the state of the case should 



be as I think it will be, then I shall expect the 
honorable Senator to vote with me, because 
I believe we have precisely the same views on 
this point, differing only in the importance we 
attach to the developments already made. 

Mr. FE3SENDEN. The honorable Senator pred- 
icates his supposition, then, upon utterly reject- 
ing the President's assurance of what he meaps 
to do. The President intimates, quite distinctly, 
that unless Kansas be admitted as a State, with 
the Lecompton Constitution, he will be obliged 
to keep the troops in Kansas. Now, I know the 
Senator does not mean to vote for the admission 
of Kansas under the Lecompton Constitution, and 
therefore what is his inference? He must either 
take it for granted that Kansas is to come in 
under that Constitution, and that therefore the 
troops are to be withdrawn, (in which case no 
more are needed ;) or else that it is not to come 
in, and if not, that the President does not mean 
to perform what he has promised in relation to 
that matter. I take it for granted that Kansas 
is not to be admitted under this Lecompton Con- 
stitution, and I also take it for granted that the 
President then will, if he has army enough, keep 
troops in Kansas with a design to control the 
Free State people there, as he has done before. 
I do not understand with what object the Sena- 
tor can vote for an increase of the army to relieve 
him from the necessity (if such a necessity might 
exist) of withdrawing those troops for the sake 
of quelling disturbances in Utah The Senator 
must reconcile it to himself. He undoubtedly 
acts from the best motives, and is the best judge 
of his own actions. 

But, sir, I proceed to speak of the message it- 
self. 1 was remarking that it was entitled to be 
treated with all the respect due to the eminent 
position of its author. In times past, we have 
been accustomed to receive these messages, and 
to believe the author, in sending them to Congress, 
intended to perform that part of his constitutional 
duty which enioins on him " from time to time " to 
'• give to the Congress information of the state of 
the Union." A message fVum the President of 
the United Suites should import absolute verity ; 
and heretofore, whatever else we may say about 
them, we have been accustomed to believe tfiat 
Presidents of the United States, in communica- 
ting a message to Congress, in undertaking to 
give information to Gougiess, would at kast tell 
the truth ; at any rate, that they would not set 
at defiance known and re,-,ord'.^<l facts, nor make 
an argement all on one side ; ignoring facts 
quite notorious with reference to one position, 
and stating that which was not supported by fact 
in regard to the other. And yet, sir, with all the 
respect which I entertain for the officer who oc- 
cupies so eminent a position, and notvvithstaud- 
ing all the'impressions 1 have with reference to 
his constitutional duty when making a comtnu- 
nication to Congress, I am compelled to say, un- 
der the circumstances, that tlie i'resideut has 
been guilty in this message not only of ignoring 
well-known facts, but of stating as facts matters 
which he must have known, if he examined the 
documents, could not be true. What excuse he has 
for this, before the couatry, it is not for me to say. 



I have to remark next in regard to the tone of 
this message. The tone of a messiige trom the 
Chief Magistrate of the Union, to accord with his 
character and position, should, in my judgment, 
be dignified, plain, and impartial ; it should not 
be denunciatory ; yet, from the beginning to the 
end of this message, we hear from the Chief -Mag- 
istrate of the United States strong denunciations, 
in severe language, of what he admits to be a 
majority of the people of the Territory of Kan- 
sas ; while he has not one word to say — nothing 
save excuse and palliation — not even that, but 
rather approbation, implied approbation — for all 
that bas taken place there in opposing the efforts 
of the people of Kansas to obtain a Free State 
Constitution. I think the language of the mes- 
sage in that particular is unworthy a man who 
has been chosen by the suffrages of his fellow - 
citizens to fill one of the few great places of the 
world. 

It is a little, singular, too, when we consider 
his education, that, with reference to this con- 
troversy, he has no sympathy whatever for the 
object which the people of Kansas, those whom 
he admits to be a majority, declare themselves to 
have in view. He was born and educated iu a 
free State. He has seen all the advantages oi 
free institutions. He has seen his native State 
of Pennsylvania grow to be one of the very first 
in rank in the Union, and to retain that rank ; to 
be one of the first in wealth, one of the first in 
power, stretching out its arms on every side, to- 
wards commerce, and manufactures, and agri- 
culture — growing with a rapidity unprecedented, 
its people enjoying all, not only of the comforts 
but of the elegances of life, simply from the fact 
that its people have been left to labor, to carry 
out the cardinal doctrine on which our institu- 
tions were founded — that the capital of the coun- 
try is the labor and employment of the free peo- 
ple of the country. Notwithstanding all that, 
and notwithstanding all that he has witnessed 
of the enormous growth of the free States under 
free institutions, we have not one word in the 
message, from the beginning to the end, except 
denunciation of those who arc attempting to ex- 
tend the benefit of the same institutions to the 
Territor}' of Kansas. There is no Fympathy for 
them. He exults, his tone is that of exultation, 
when he speaks of the fact that the Territory of 
Kansas, which he calls a State, although it is not 
yet a State, is now as much a slave State as 
Georgia or South Carolina. His tone is that of 
gratification, that instead of being a free State, 
like his own, and instead of joining the sisterhood 
of the great free States of this Union, it has 
1 placed itself on the very different level of the 
slave States of this Union, and is bound from 
this time henceforward, as he thinks, to the car 
of Slavery. The tone in which he speaks of this 
is to my mind incomprehensible, and it shows 
that, for some reason or other, he has chosen to 
forget the land of his birth and education, with 
all its manifold advantages and blessings. 

Sir, he treats the question as of no importance 
to any except the slave States of the Union. It 
is of trifling importance, he says — not precisely in 
those words, for I do not undertake to quote his 



language — but it is of little importance compar- 
atively to the few thousands in Kansas ; as if the 
institutions under which they are to live were of 
no consequence to them ! Who should be inter- 
ested but the thousands who are to live there, to 
receive the benefit or suffer the evils which are 
to flow from the institutions established there ? 
It is of consequence to the slave States of 
the Union, he says. Is it none to the free 
States ? He does not intimate that it is. It 
is of no comparative importance, he thinks, be- 
cause there are but a few thousand people in 
Kansas, forgetting, as he does, the many thou- 
sands and hundreds of thousands who may be 
there in a very short period of time, covering its 
plains, and tilling its valleys until they smile. It 
is not enough to say that the question is of very 
little comparative importance, as connected with 
them, but it is of great importance to the slave 
States of the Union. They have much feeling 
about it ; they are to be consulted about it ; but 
he does not intimate that the free States, the 
millions of people who live under Constitutions 
unlike those which have been forced upon Kan- 
sas, can feel any interest in a question whether 
that great Territory is to be opened to them and 
their descendants, freed from a competition with 
that kind of labor which, in my judgment, has 
cursed so large — yes, the largest portion of the 
area of the States of this Union. Sir, these re- 
marks, this tone, this want of sympathy, this 
exultation, this entire forgetfulness of the great 
and much the largest portion of the people of 
this country, in the President's message, are to 
me mysterious, coming from a man born and 
educated, as the President has been, under in- 
stitutions like those with which he is so famil- 
iar. 

Again, the President very clearly intimates 
that difficulties must arise, in case we refuse to 
admit Kansas as a State under the Lecompton 
Constitution. He warns us, in covert but very 
clear terms, that the people of the slave States 
will be excited on the subject ; that they will not 
be willing to submit to it; and that, therefore, 
with a view to check all the agitation which may 
arise from the rejection of the Constitution which 
has thus been submitted, he counsels that, for 
peace sake, we should adopt it. Sir. I should 
have expected from the Chief Magi--;trate of this 
Union, sworn to support the Con^rtitution and 
execute the laws, that at the time when he stated 
the danger that there might be excitement, he 
would have intimated an opinion, a wish, that 
such excitement should not arise ; that he would 
have wHrned the people of the slave as well as 
of the free States, against disobeying the laws of 
the country. What is l\te proper tribunal, I 
should like to know, to settle this question ? Is 
it not Congress ? If Congress chooses to settle 
the question adversely to the views of the Presi- 
dent, and say that Kansas shall not be admitted 
under the L^'compton Constitution, I beg to know 
why he should not counsel the people of the 
slave States to submit to the majority, who have 
the constitutional right to decide, and have de- 
cided ? Why does he warn us that we must pay 
regard to these threats of overturning the Con- 



stitution, of dissolving the Union, and avoid agi- 
tation, because we have been threatened, and 
not give one word of warning to the people 
from whom he anticipates it — not tell them that 
they will be compelled to bow to the will of the 
majority, that they will be compelled to obey the 
laws of the land? Why, sir, it is the strangest 
thing to me, that a Chief Magistrate of the coun- 
try, holding this position, should not say, as one of 
his great predecessors said before him, that the 
Constitution should be preserved ; that the Union 
should be preserved ; that when the action of 
Congress was legal, no matter upon what sub- 
ject, the powerof the Federal Governm.eat should 
be lironght to bear on any people, or any portion 
of people, whatever, who undertook to make any 
agitation which endangered the safety of the 
Union of these States; but we hear nothing of 
that from the present President. 

Strange to say, too, he is all- the time talking 
of law ; he tells us that the people must obey 
the laws ; that the course of things in Kansas 
has been leg.il on the one side and illegal on the 
other ; and he is very ready to read lectures to 
that people and to us on the subject of obeying 
the law, while he conveys no intimation to any- 
body, that if the laws are broken, or attempted 
to be broken, in one region of country, there will 
be any interference from him, or even any words 
of reprobation from him. 

Now, sir, as to the facts stated; let us look a lit- 
tle at what the President has stated in his message. 
He has made all the intimations of which I have 
spoken; but what has he gone on to say? He 
charges, substantially, that the majority (for he 
admits it to be a majority by saying more than 
ouce in his message that the people of Kansas, 
unless he had prevented them by military force, 
would have overturned the Government; thus 
admitting that they had the power as well as the 
will to subvert the Territorial Governmeut there 
established) had a design, and have had from 
the beginning, to subvert the Government by 
force. Is there any proof of this ? What proof 
does he adduce? The desire to establish the 
Toptka Constitution, as it has been called; and 
on the strength of that fact he even charges 
Governor Robinson with having, in the very 
first sentence of the message which he commu- 
nicated to the Topeka Legislature, expressed the 
same design ; when, if you come to look at it, 
(I will not trouble the Senate with reading it,) 
there is not a cingle word, not a single idea, not 
a single intimation, in that clause of Governor 
Robinson's message which has been referred to 
by the President, intimating any design or wish 
of the kind. I deny, here, the whole foundation 
of the President's charge and argument on that 
point. There never has been a design to estab- 
lish the Topeka Constitution by force. No sucli 
design has ever been avowed, and no such de- 
sign has ever been attempted to be carried into 
execution. 

I know very well that the honorable Senator 
from Illinois, [Mr. Douglas,] in the speech which 
he made at the beginning of this session, stated 
that, if he had not believed it was the intention 
of the people of Kansas to carry Ihut Constitu- 



tion into effect by force, and establish a State 
Government under it by force, he would not have 
been disposed to interfere, for they had undoubt- 
edly as good a right to petition, in that form, iis 
another portion of the people had to petition in 
another form ; but I should he gl.id to have gen- 
tlemen point me to the proof, in any jiart of the 
proceedings in the TerrUor} of Kiinsas, showing 
that that people ever duaigned or expressed the 
intention to establish that Cou.-titulion and a 
State Government, under it by force. The very 
first step they took disproves it. They sent it 
here to Oongn'ss, and petiiioned to be admitted 
under it as aS'.ate. They chose a Legislature ; 
and that LegTslaiure met, but passed no laws ; 
it adj'junied. It avowed, then, that its design 
was noL a foiciile one — not to establish a State 
Governrnf-nt by force; but to est;iblish it by the 
weight ot opinion in the Territory, under an ap- 
plication to Congress to be admitted under it ; 
and yet this has ijeen alluded to over and over 
again, more than once on this floor, aiid by the 
President himself and by other olhcials, as estab- 
lishing the fict, that (here was rebellion existing 
in Kansas. Sir, the adoption of that Topeka 
Constitution, and the choice of State officers un- 
der it, and all they ever did, no more go to make 
out rebellion against the constituted Government, 
than would a town meeting called to pass res- 
olutions on the same snbjet't. 

What is rebellion? It is a desire and an at- 
tempt to overturn a Government by force. Re- 
bellion doe ; not consist in words ; you must have 
forcible acts. It is not enough to express abhor- 
rence of a Government ; it is not enough to ex- 
press detestation of the officers who carry on the 
operations of Government ; it is not enough to 
call town meetings ; it is not enough to frame 
a Constitution and submit it to the people ibr 
adoption ; it is no' enough even to pass laws un- 
der it, so long as there is no design to put them 
forcibly in execution. The people of Kansas have 
done no more than this. On that ground. Sena- 
tors on this Hoor, and others, elsewhere, have re- 
peatedly cl'.arged, and the President echoes the 
cry, that here is rebellion existing in Kansas ; 
and the people are denounced as rebels against 
the constituted authorities. Leaving out of the 
case the f ict that the Territorial Government was 
a usurping Government in the beginning, (as it 
was,) and granting it to be a h'gal one, ''.1! I aver 
that there has been nothing done in reference to 
the Topeka Consatntioa, from the beginning to 
the end, on which any man who values his 0{)in- 
ion as a constitutional hi wyer could predicate the 
idea of rebellion. I said so the othei day, and 
I say it again ; and the charge is not proved 
by long, labored, quotations from letters of Gov- 
ernor Walker. Governor Walker seems to be 
very good authority with the President on one 
point, and no authority vrhatever with him on 
other points. When Governor Walker tells him 
that a great majority of the people of Kansas are 
opposed to this Constitution, he does not believe 
him, for he does not refer to the fact. When 
Governor Wiilker tells him there was fraud in 
the arrangement made in reference to the State 
officers, that should be corrected, be does not be- 



lieve a word of it, nor do gentlemen here. When 
Governor Walker tells him of the great frauds 
that were committed at various precincts which 
have beeu spoken of by the Senator from Massa- 
chusetts [Wr. Wilson] and others, he does not 
believe a word of it. But he does refer to Gov- 
e-uor W;!lker's letters, and makes many extracts 
from them, to t-stablish the (act of rebellion; but 
they pioduce no s n!, convictions — they prove 
nothing of the kini Take them from the be- 
ginning i,) ih'j end. and they make out no forcible 
resisiauvc. They are nothing but statements ; 
there is no fact on which to ])redicate them. The 
country migiit understand, from the statements 
thus made in detail, that the President really be- 
lieved there wa.s a d.nigerous rebellion in Kansas, 
and that unless he interfered with the troops of 
the United States, the Government would be over- 
turned ! 

It has been remaiked by my honorable friend 
from Massachusetts, [Mi. W1L.S0N,] that it will be 
observed that these letters of Governor Walker 
were written immediately after his arrival in the 
Territory. Who was Governor Walker? A friend 
of the Adminittraiion, a leading Democrat, a 
Southern man, with all his pvejudices excited 
afiainst the Free Stute people of Kansas, all his 
ftelings and wishes in favor of adding to the 
strength of the slave States, by making Kansas 
also a slave State. He went there with these im- 
pressions ; he carried them with him ; he began 
his administration v\ilh them; he carried them, 
1 am happy to ^ay, not to the end. On arriving 
there, whuin dues he meet? His associates are 
the very persons who have been practicing these 
iniquities in Kansas. His suspicions are awa- 
kened, his mind is excited, and he looks upon all 
-these demonstrations as actually constituting a 
rebellious disposition on the part of the people 
of Kansas I 

What are the proofs that he gives? They 
amount to nothing. As I remarked on a former 
occasion, one is that the people of Lawrence un- 
dertook to form a city government for municipal 
purposes. They had a right to do so; they'did 
so; and they put that government in operation, 
not to be enforced on those who were unwilling, 
but to be enforced with the consent of those who 
agreed that it should be done, under the very 
strong necessities of the case. He looked upon 
it as rebellion ; he denounced it as rebellion ; and 
they denounced him in their turn. He did not un- 
dertake to prevent thi m, and did not prevent them. 

Again, another reason was the formation of a 
milirary organization. For what avowed pur- 
poses ? For the [)urpo5e of protecting the polls — 
a legal purpose, a constitutional purpose—a right 
which arose fiom the constitutional right of the 
people to bear arms for their own protection, 
which cannot be taken away from them. Gov- 
ernor Walker said he believed that such was not 
the design ! Has there been any evidence that it 
was not the design? It was the design avowed, 
the only one; and yet this is all the proof we 
have, coming from these statements, to establish 
the charge made by the President of the United 
States, that there was rebellion in Kansas which 
called for the use of the military power. 



6 



Sir. there are some thing3 which the President 
forgot to state — he, forgot to state that the Gov- 
ernment of Kansas was a usurping Government. 
Did he not iinowthal fact? The lionorable Sen- 
ator Irom Illinois, in his speech, which we all 
remember, excused the President, or attempted 
to excuse him, for not knowing and understand- 
ing what was the absulute meaning and intent 
of the organic act of Kansas, or a certain portion 
of it, on the ground that he was absent from the 
country at the time of its passage. He was ab- 
sent from the country at the time some of the 
events happened, of which I am speaking Does 
any gentleman here undertake to deny that the 
first Legislature was forced i; the people of 
Kansas by a foreign invasion? The proof is in 
the record — it is in the record taken by the House 
of Representatives. Was not the President famil- 
iar with that? Ought he not, as a statesman, to 
have been familiar with lb n? Can he give any 
excuse for not knowing it? Is it enough for the 
President of the United Stat- s to come into oi3ice, 
and say he does not know some of the leading 
facts which have taken place within a very short 
period before his election and inauguration ? No, 
sir, it is no excuse; and the President of the Uni- 
ted States ought not to, and shall not, avail him- 
self of it before the people of the country. He does 
not appear to know the other facts which I have 
etated, with reference to the disclaimer of the 
people who framed the Topeka Constitution, from 
the beginning, of any intention to subvert by 
force the established Government of that Terri- 
tory. 

His next allegation is a very singular one, and 
it calls for more particular notice. He avers 
that the sense of the people was taken on the 
question whether they would have a Convention 
or not; and he holds them accountable, there- 
fore, for not voting on that question. Mark you, 
he is now communicating information to Con- 
gress. This is one of the items which he commu- 
nicates, that the sense of the people of Kansas 
was taken on the question of a Convention 1 
What opportunity did they have to express that 
sense? Could they express their sense on a 
Convention under the force of the test oath that 
was applied to them? Is it not matter of noto- 
riety, is it not upon the book, is it not matter of 
record, that, coupled with the right to vote on 
the question of calling a Convention, was pre- 
scribed an oath to be taken by every person who 
should ofler himself as a voter on that occasion? 
What was that oath ? It was stated by the Sen- 
ator from Missouri the other day. It was an 
oath to support the Constitution of the United 
States ; to support the organic act of the Terri- 
tory ; and, beyond that, to support the fugitive 
slave law. Now, sir, who in any country — I will 
not say in any free country, but who in any 
country — ever before heard of a test oath as a 
prerequisite to the right to vote? I have heard 
of an oath administered at the polls to show a 
person's qualification — that he comes under the 
description of persons who are allowed to vote — 
but I believe this is the first time in the history 
of any country where the people are allowed to 
exercise the right of suffrage at all, in which an 



oath has been prescribed by way of test to sup- 
port certain measures of Government and certain 
laws, 'as a prerequisite to theiright of suffrage. 

Is it not well known — does not, the whole coun- 
try understand — that throughout the free States 
there is the greatest abhorrence of the fugitive 
slave law ; that in many of those States th.it act 
has been held to be unconstitutional ; that a large 
portion of the people not only consider it uncon- 
stitutional, but a much larger portion consider 
it oppressive and uuju.^t, and derogatory to their 
rights ? Is not that well understood? And yet, 
when people from the free States with these 
feelings and impressions present themselves in 
Kansas, and show that they are qualified under 
the organic act of Kansas and the laws of the 
Territory to exercise the right of suflfrjige as per- 
sons, they find that the so-called Legislature 
which ordered the calling ol a Convention have 
prescribed that no man shall vote, if challenged, 
unless betakes an oath to support that very law, 
which they knew perfectly well could not be 
taken without a violation of the conscience and 
honor of those who presented themselves. 

Is this takiag the sense of the people of Kan- 
sas? Is this tbe mode in which the President 
would allow the people of Kansas to express 
fairly their views on the point, whether a Con- 
vention should be called or not? This was the 
only mode presented to the people of Kansas, 
and this is held out by the President to the peo- 
ple of the country as sufficient to entitle them 
fairly to express their opinions on the subject 
thus submitted to them. That is information 
communicated to the country ! 

I pray Senators who hear me, as they are al- 
ready familiar with it, and .those who are here- 
after to consider it, to remember the fact, that 
the President further states, for our information, 
that the act passed for the election of delegates 
was fair in its provisions Why does he not take 
the testimony of Governor Walker and Mr. Stan- 
ton en that subject? What fairness was there 
Iq it? It provided for a census and apportion- 
ment. As has been stated, in that census and 
apporiionment, one-half the people of the Terri- 
tory were excluded. 

Mr. COLLAMER. That objection applies not 
to the law, bnt to the execution of the law. 

Mr. FESSENDEN. I know that. He states, 
however, that they had a fair opportunity to act. 
I am speaking of the result, and inquiring whether 
there was any such fair opportunity as to entitle 
him to consider the people of Kansas bound by 
the result which followed ? I may have expressed 
myself incorrectly, and lam obliged to my friend 
for suggesting that this evil was not in the law. 
The law may have been fair on the outside. That 
is the argument; that all these laws have been 
fair, and a fair opportunity has been presented ! 
My question is with reference to the opportunity ; 
what kind of opportunity was presented to the 
people of Kansas to settle that question? Al- 
though a census and apportionment were provi- 
ded for, it is perfectly notorious — and we have 
testimony by which the President is bound, be- 
cause it is the testimony of his own officials, of 
Governor Walker and Secretary Stanton ; we 



1 



have their testimony to the fact — that one-half 
the Territory of Kansas was entirely neglected 
and unprovided for. 1 will not say one-half the 
people, because, perhaps, the counties thus omit- 
ted might not have been so populous as the rest; 
but the President undertakes to say, sneeringly, 
that it is no onjection that a lew scattered people 
in the remote couulies did not vote. Sir, it has 
been shown that a very large and important 
portion of the Territory was not included in the 
census; and we know, moreover, as a fact which 
caup.ot be contradicted, and has not been, that 
even in the counties where the census was taken, 
a large number of the people were omitted ; they 
were not registered ; there was comparatively a 
very small number registered ; in fact, not one- 
half the peoplfe of the Territory. That matter 
was so conducted as not to present to the ma- 
jority of the people of the Territory an opportu- 
nity of being heard ^^'U the election of delegates ; 
and yet the President undertakes to say to 'the 
Senate, and to the House of Representatives, and 
to th-e world, in this manifesto which he has put 
fiirili, that here was a fair opportunity presented 
fur ilie people of that Territory to select delegates 
of their own peculiar shades of opinion to carry 
out their own will and desire ! It is a very curi- 
ous kind of information he communicates. I sta- 
ted that, in many respects, he had forgotten facts 
notorious, and in other things he had stated as 
facts tilings notoriously untrue; and I think I am 
borne out by the record in the assertions I have 
thus made. Why should he speak of the com- 
paratively few voters omitted? Did he know 
how many there were? Has there been any 
census taken of those voters in the Territory? 
Not at ali. Whence does he derive his informa- 
tion? It is a statement without book; an asser- 
tion without authority; au allegation without 
proof. What right has he to come before the 
country, and thus make an assertion which is not 
upheld by any evidence from any quarter? 

He makes another allegation, which is well 
worthy the serious notice of the country. It is 
in a very few words, and I will read it : 

"Tlie question olSlavery was submiued to an election 
of Uie people ot'Kaiisas, on ihe 21st of Dectmber last, in 
obedience to tin* taaudate of ihe Constitution. Here, H^ain, 
a fair opportunity was presented to the adherents o' ili.i 
Topeka Consiitulirn, if they were the majority, to decide 
this e^citinijquestion 'in their own way,' and thus restore 
peace to the di>lracted Territory; but they again refused 
to ex'rci = e tht ir rii^ht of popular sovereignty, and again 
suffered the eleetioii to pass l)y dsfault. ' 

Fair opportunity to decide the question of Sla- 
very 1 Why, sir, the President makes this alle- 
gation on the whole facts before him — with the 
Constitutions before him, which were submitted 
to the people. Calmlj'- and deliberately, in au 
argument presented to the people of this country, 
he comes before them and says, in his official 
character, as communicating information relative 
to the state of the Union, that the question of 
Slavery was fairly submitted to the people of Kan- 
sas on the 21st of December. Did not the Pres- 
ident know that it was but a choice between two 
slave Constitutions — two Constitutions, both of 
which recognised and established Slavery in that 
Territory ? The facts are familiar to ali of us in 



the Senate. I hope they are equally familiar to 
the country. One of those Constitutions author- 
ized Slavery in the ordinary form, providing that 
slaves might be brought into the Territory and 
held there, but it allowed the people to change 
that Constitution and that provision ; the other 
prohibited the introduction of slaves into the 
Territory, but it provided for the perpetuity of 
the Slavery that already existed there. Those 
there were to remain slaves, and their children 
were to remain slaves to the remotest ages, and 
the people were prohibited from changing that 
provision at all. 

Is it not the height of assumption — I will not 
use a stronger word with reference to the Presi- 
dent of I'he United States — to put upon paper, and 
send here, and before the country, the broad as- 
sertion that the question of Slavery was submit- 
ted to the people of Kansas ? Sir, that question 
never has been. submitted to the people of Kan- 
sas. Nothing has been submitted to that people 
but a choice between two slave Constitutions, 
and, for my life, I am unable to tell which was 
the worst of the two. Will any gentleman un- 
dertake to demonstrate to me the contrary ? Is 
there any possibility of disputing the assertion, 
and did he not know it ? Had he not read those 
Constitutions ? Had not his attention been call- 
ed to them ? Does he never read a newspaper 7 
Is he not aware of what is transpiring before the 
country every day, and is admitted as a fact be- 
fore and by the people of the country ? It is a 
matter of astonishment to me, that a man occu- 
pying that eminent position, spealjing to the 
country in a State paper, speaking in the face of 
papers which are to go upon the record, and by 
which his truth, or his neglect of it, may be ad- 
judged, could hazard his fame on an assertion 
so utterly destitute of foundation, so entirely op- 
posed to fact, as this assertion. 

He follows it up by the remark that they bad 
a fair opportunity to settle the question of Sla- 
very. They could only vote, not to reject both 
these Constitutions, or one or the other, but they 
could vote to choose between the two, provided 
they would previously take an oath that they 
would support the Constitution which might 
have the majority of the votes. A man opposed 
to Slavery, believing it to be wrong, believing it 
to be unwise, believing it to be a curse to the 
people among whom it exists, is presented with 
two Constitutions, and told that he may vote for 
one of them, provided he will take an oath to 
support that which he believes in his secret soul 
to be wicked, and at any rate he believes to be 
di.'sastrous to Ihe community in which it is estab- 
lished ; and this is submitted on the word of the 
President, oh these facts, as a presentation fairly 
of the question of Slavery to them, not only with 
reference to the question presented, but to the 
mode in which they were to act upon and deter- 
mine it. I think it requires a wonderful degree 
of cotirage in any man, especially a man holding 
the position which the President of the United 
States holds, to make an assertion thus unfound- 
ed in fact. 

But, sir, he offers us some remedies ; he offers 
the people of Kansas remedies. He tells us that, 



8 



aftor all, if the' "li not like the Constitution, 
ihi-ie Is no uiiliLiilty in getting rid of it; that is 
to say, that the Oonsiitution may be changed. 
Does lie not know, do we not know, is there a 
man among us wUo does not understand, that 
when tliat Oonstituiion is once fastened on the 
people of ICaiisas, it is next to impossible to get 
rid of it for a series of years, although a majori- 
ty may exist against t, except by violence ? What 
have we witnessed ? We have seen the votes of 
two thousand five hundred people — for Secretary 
Stanton says that is about the number — or, at 
most, three thousand people — in favur of Slavery, 
outweigh and override the votes of ten thousand, 
or tvvelve thousand, or. fifteen thousand people; 
I do not know how many, but four, or five, or 
8ix times as many. We have seen this result 
over and over again, produced by the act of their 
officials. How easy is it for unscrupulous men 
to control the polls, having the authority which 
has been exercised by those men there here- 
tofore, and is exercised now ! If Mr. John 
Calhoun and his associates can get majori- 
ties as he has obtained them recently, how easy 
will it be for them, when in possession of ail 
the forms of law of which the honorable Sen- 
ator from Georgia [Mr. Toombs] has spoken, and 
in possession of the Government, to control it 
still! 

Let as look at the operation of it for a moment. 
A Legislature is to be elected. The judges of 
the election have control of the polls ; the indi- 
viduals desirous of jiroducing a certain result 
have control of the election ; they record the 
votes; they return the votes; they make any 
number of them, as they have made any number 
of them. What chance is there, then, to obtain 
a Legislature which will Gubmit the question of 
a change of the Constitution to the people ? And 
if it is submitted to the people, with the same 
men having control of the polls who had it be- 
fore, or men actuated by the same principles, 
what opportunity presents itself for a fair vote of 
the people on it? The only remedy is revolu- 
tion ; and the President knew it when he sug- 
gested the idea of c'lianglTig the Constin;Tition as 
a remedy. The only remedy is the last resort to 
arms and physical force ; and what chance would 
the people of Kansas have then? The Governor 
or the Legislature calls upon the Chief Magis- 
trate of the nation, and states to him that there 
is domestic insurrection in Kansas. The troops 
of the United States, of which my friend from 
New York is so ready to vote an increase, are 
under the control of the President, and at his 
command are marched to Kansas for the purpose 
of suppressing that insurrection. What is the 
result? What opportunity, 1 ask again, would 
the people of Kansas have under those circum- 
stances to rid themselves, by a change of their 
Constitution, of that which had been thus forced 
upon them ? None. 

But the President makes another very singular 
BOggestion, one which shows his great regard 
for law, and his great knowledge of the princi- 
ples of law. He suggests, as a remedy to the 
people of Kansas, that after they have come into 
the Union as a State, thev will then have the 



power to punish those who have committed these 
frauds. It is very much like shutting the stable 
door after the steed is stolen, if you can do it: 
but this is the first time I have ever heard it 
suggested by the Chief Magistrate of the nation, 
that an ex post facto law could be passed, and 
persons punished for committing frauds for which 
there was no punishment at the time they were 
committed. What, sir, here are frauds commit- 
ted in the Territory of Kansas, and the President 
tells us that it is very easy to get along with 
them, because, after you are admitted as a State, 
you may punish the persons who have commit- 
ted these frauds! I should like to know of my 
honorable friend from Louisiana, [Mr. Benja- 
min,] with all his acutentss and knowledge of 
legal and constitutional principles, in what mode 
he would set about to do it? If you could do 
it, it would afford but a very poor satisfaction, 
alter the whole evil for which the frauds were 
committed had been consummated. 

The whole argument of the President is founded 
on the idea that all the proc( edings in Kansas 
have been legal on the one side and illegal on 
the other. I propose to examine that position. 
If you read the message of the President care- 
fully, you will see that that is the outline of the 
whole. It was the argument of the honorable 
Senator from Georgia, [Mr. Toomijs,] the other 
day, that here was legality on the one side and 
illegality on the other; and that, having these 
two to choose between, of course he must sustain 
that which was legal. How does the President 
undertake to establish it? In the first place, he 
asserts that the organic law establishing the 
Territory was in itself an enabling act. I sup- 
pose that I might as well leave this point to the 
examination of the honorable Senator from Illi- 
nois, [Mr. Douglas.] He will deal with it, I 
have no doubt, when the time comes ; but I 
think he must have been as much surprised as I 
was, when he found the President asserting, in 
plain and unmistakable language, that there was 
no need of an enabling act from Congress, be- 
cause the Kansas organic law itself provided 
one. The idtJi 'a new. I never beard it sug- 
gested until it was hinU'd at by the Iioiun'able 
Senator from Missouri on a previous occasion, 
and he did not seem to make much of it; but 
the President has taken it up. I should like to 
know of any Senator here, whether the idea, as 
thus presented, is not one that conaes upon him 
by surprise, on the authority from which it ema- 
nates on this occasion. 

Now, I wish to read this clause of the message 
for another i)urpose, because there is something 
remarkable about it : 

"That tliis law recognised tlie right of ihe ptople of the 
T iriiory, wilhoul any eiiabliiiK act from Congress, lo 
form a St^itc Constitiilion. is too t learfor arf^iiment. For 
Congress ' to leave ihe people of the Territory per eetly 
free,' in f<aiiiing their Consiiution, 'to form ai.il resuiate 
iheir domesiic inslilutions in tteir own «ay suliji-cl only 
to rhe Constitution of 'he United States 'and li'en lo say 
that they should not lie permiiled to proeeed and frame a 
Consiitulioii in llieirownwav, without an express authori- 
ty from Congiess, appears lo be almost a coniradiciion in 
terms." 

Be it rernarked that, in order to establish this 
position, the President is obliged to interpolate 



9 



words into ttiat clause of the organic act, which 
are not lound in it originally. Those words are : 
"in framing their Constitution." There are no 
such words in the act. Undoubtedly, if that 
clause had provided that the people might, in 
framing their Constitution, have arranged their 
institutions to suit themselves, the idea might be 
supported; but the words are not in the original 
provision. He assumes that they are. He mukes 
the interpolation, and then draws his own infer- 
ence from that interpolation thus introduced into 
the organic act. 

Mr. lUlOWN. If the Senator from Maine will 
allow me, I* will, iu that connection, show that 
the author of the Kansas bill puts precisely the 
same interpretation on it which the President 
does. In the report made to Congress on the 12th 
of March, 1856, by the Senator from Illinois, I 
find this language: 

"Is not the organization of a Territory eminemly iieees- 
sary and proper, as a means ofeaaliliug the people ihere- 
01 lo form and mould ttieir local anddomostie iniuretlOll?-^ 
ajul establish a Sta'e Govenuneia under the authority ol 
til" i^onstilulion, preparatory to its admisesioii into the 
Union ? '■ 

I read from page 4 of the report, in which it is 
stated to be eminently proper and necessary for 
two purposes : first, to enable them to regulate 
and mould their institutions to suit themselves ; 
and, second, to form a Constitution, preparatory 
to their admission into the Union. If the author 
of the bill put that interpretation on it in a re- 
port made to Congress, I see no great harm in the 
President putting the same construction on it. 1 
think it was the true interpretation. 

Mr. FESSEXDEN. It makes no difference to 
me what construction the Senator from Illinois 
put on that act at any time. I do not, however, 
agree with the Senator from Mississippi, that the 
language he has read carries any such idea with 
it; but I shall leave it to the Senator from Illi- 
nois, if he chooses, to settle that question with 
the Senator from Mississippi, and with the Pres- 
ident. What 1 nave to do is to comment on what 
the President says. I say that it is a new idea, 
never before suggested in my hearing, (and I be- 
lieve I have heard this controversy from the be- 
ginning,) that the organic law was to be construed 
as an enabling act, until it comes authoritatively, 
for the first time, from the President of the United 
States. 

I do not blame him in one sense ; it was neces- 
sary to his argument ; without it, that argument 
fails ; but, in another sense, I do blame him 
for it, and that is this: in undertaking to quote 
the language of a clause in a law of Congress, I 
think he should not interpolate words into it 
which are not there, and hold out the ide^i that 
those words actually exist, or are clearly and dis- 
tinctly implied, when there is nothing in the act 
itself to authorize anything of that description. 
Let me read this clause. It has been read some 
thousands of times before, but perhaps it cannot 
be read too often — I mean the clause follov/ing : 

"I' behis? the true intent and meaninu of this net, rot to 
lesisls.le'Slavery inio any Territory or rilaic, nor tj nx- 
elude it ihereirom, but to leave the people thereol'" — 

Here the President inserts " in framing their 



Constitution," but " in framing their Constitu- 
tion " is not there — 

— ■■perfectly free to form and reTulnf^ their domeslio in- 
-titutions in their own way, suhjecl only to iht Coiis^litu- 
tion of tlie United States." 

It is very plain that it was not intended that 
this should be an enabling act ; because, if it 
had been so intended, it would have been so spe- 
cifically stated. The words " in framing their 
Constitution " would have been inserted. At 
any rate, some particular portion of that act 
would have been found, in which tb<- ». "thority 
was specifically given to the people o' K.tasas to 
frame a Constitution under it, and im.tv that 
Constitution to ask admission into ttie I nion ; 
but nothing of that kind is found. Is it possible, 
can anybody believe, that the Congress of the 
United States, in framing a law to organize a 
Territory, and intending by that law to confer on 
the people of the Territory the power to frame a 
Constitution, and under that Constitution to come 
into the Union, would have left it to be inferred 
from Language wllicb, in fact, conveys no such 
idea? The idea is preposterous. Again, we all 
know that noibing of the kind was ever sug- 
gested iu any deb.ite that took place on that 
occasion. Nobody supposed that under that 
organic act there was authority conferred to 
frame a State Constitution, preparatory to ad- 
mission into the Union. There is nothing in the 
terms of the provision which I have read, noth- 
ing in the terms of the act anywhere, v.hich 
could lead to the conclusion that any such au- 
thority v*as either given or intended to be given 
in any manner whatever. 

I should like to ask any man, and the President 
of the United States particularly, who contends 
that this is an enabling act, of what bei^efit in that 
clause are the words, "subject only to the Consti- 
tution of the United States," if the clsiuse wii^ in- 
tended to say, and only to say, to the people of the 
Territory of Kansas, "you are at liberty, when 
you frame a Constitution, preparatory tor admis- 
sion into the Union, if you choose, to frame your 
domestic institutions in your own way ? " Of what 
benefit, let me ask, is it, to add at the end of the 
sentence, " provided you do not in any manner 
contravene the provisions of the Constitution o\ 
the United States ?" Must not the State Consti • 
tution, when framed, come before us? Must il 
not be presented to us for our action, and if ther-j 
is a provision iu it contrary to the Constitution 
of the United States, have we not power to rejeoi 
it? The very fact that the words " subject onl_v 
to the Constitution of the United States " aro 
left in the act, goes to prove most conclusivelv, 
beyond all dispute, that the object was not t« 
confer on the people of Kansas that authoritv 
when they were forming their Constitution, hu\ 
to confer on them that authority to be exercise^' 
while they were a Territory, and with reference 
to their Territorial institutions alone. The peopl'' 
of a Territory may very well be thus limit© I 
while they remain a Territory. While they are- 
acting under their organic law, framing institu- 
tions to leguhiio themselves at that time, con- 
fining themselves to that, it may be very goo I 
sense to say, that while you are thus a Terri ■ 



10 



tory, you sball frame no in^tilulions that are 
coQtrary lo tlie Uonstituuou of the United States; 
but if it was couferring oa them the authority to 
form a Con3titatiou, of what use is it to say — 
are not the words throvs^u away, as perfectly in- 
operative — "subject lo the Constitution of the 
United States ?" that is, you may make a Con- 
stitution, bat it must be such a Constitution as 
does not contravene the Constitution of the 
United [States. That very clause shows that it 
was not intended as an enabling^ act. 

It was not considered to be an enabling act. 
I should like to ask the honorable Senator from 
Georgia, if he considered it an enabling act, why 
he so soon afterwards introduced a bill iuto this 
body, which was passed by the Senate, to enable 
the people of Kansas to form a State Constitu- 
tion? Was that ccmstruction put on it at the 
celebrated meeting at the house of the Senator 
from lUiuois, when that enal)ling act was agreed 
Uf)oa, to be reported to Congress, and to be carried 
through Congress, if possible ? Was it supposed 
that tlie organic act itself contained an enabling 
act, rendering that unnecessary, and that under 
it the people of the Territory of Kansas might 
go forward and form a State Constitution, i)re- 
paratory to being admitted into the Union ? It 
was not the construction placed on it by the 
Democratic party, by the iriends of the bill ; and 
the honorable Senator from Georgia thinks the 
friends of the bill are those who alone are com- 
petent to understand ami construe it, and that 
Eobody else can understand it properly'. I point 
his attention, therefore, to his own construction, 
and I ask him if he considered that clause of 
the organic act on which I have been comment- 
ing, and on which the President commented, and 
iuto which he interpolated the words of which I 
have spoken, as an enabling act, authorizing the 
people of Kansas to frame a State Constitution? 

Mr. TOOMBS. I will answer the question with 
pleasure. I did not then, do not now, and never 
have so considered it. Nor do I consider an ena- 
bling act necessary. I think it oftentimes a con- 
Tenient mode. I act with or without it, accord- 
ing to the circumstances of the case. 

Mr. FESSENDEN. I am very happy to get 
that admission from the Senator from Georgia. 
It is made with his customary frankness and 
clearness. Having admitted it, I propose to ask 
him another question. If it was not an_ enabling 
act, where does he get the legality of all these 
proceedings of the Legislature of Kansas? If 
they had no authority conferred on them by Con- 
gress to call a Convention for the purpose of 
framing a Constitution, prejjaratory to the admis- 
sion of that Territory into the Union as a State, 
where does the legality of their action come 
from? 

Mr. TOOMBS. The Territorial Legislature. 

Mr. FESSENDEN. What authority had they? 
They had no such authority conferred on them. 
They might call a convention to petition ; they 
could not make it binding. Unless Congress 
confers the authority on a particular Legislature 
to do that very act, what authority has that 
Legislature more than another? Wliat can they 
do but petition ? What can they do but recom- 



mend? The authority is not given them; they 
must derive it from somebody. True, they have 
power "to legislate ; but this is not a proper sub- 
ject of legislation, unless the authority is confer- 
red on them to make it binding. My answer to 
the whole of the President's argument on that 
point, and to the argument of the Senator from 
Georgia on that point, is, that if this is not an 
enabling act, (which the Senator from Georgia 
admits it is not,) then there is no more legality 
in the act of the Legislature of Kansas, in calling 
a Convention, than there is in the act of the 
people of Kansas calling the Topeka ponvention. 
They can do it in the one form or the other, pro- 
vided they do it peaceably; and yet on that the 
whole argument is predicated. The President, 
or the person who drew this message, whoever 
he may have been, saw the difficulty. It was a 
part of his object to show and to convince the 
country that here was legality on one side and 
illegality on the otheV; and therefore he inter- 
polates the words of which I have spoken into 
this provision of the organic law, and says, after 
that interpolation, that the organic law is itself 
an enabling act. If correct in that, he is cor- 
rect in his conclusion. The Senator from Geor- 
gia says he is not correct. I agree with the Sen- 
ator from Georgia, and therefore, as I think, the 
conclusion does not follow. There is no legal- 
ity in it; that is to say, there is no binding 
legality. 

What right had the Legislature to act conclu- 
sively on that, subject — to say, "We appoint a 
[dace of meeting at such a time ; the people of 
Kansas may come and vote at such a time ; and 
we prescribe a test oath to those who may choose 
to vote on the question of calling a Convention ? " 
Who gave them authority to make that test oath, 
and a]iply it to the peojile of Kansas ? Where 
did they get it? It is precisely as much rebel- 
lion as was the formation of the Topeka Consti- 
tution, against the constituted Government, 
although done by the Legislature. This Legis- 
lature — having no such authority conferred on 
them, not having the right to call a Convention 
given them by the original organic law — under- 
take to say that at such a day, and such an hour 
of the day, the people of Kansas shall vote on 
the question of whether a Convention shall be 
called to make a Constitution, and only such per- 
sons as take a particular kind of oath shall be 
allowed to vote. Where did they get the author- 
ity to make any such rule? From the organic 
law? No, says the Senator from Georgia; no, 
say I ; and no, must every man say who is not at 
liberty to do as the President has — and that is, to 
interpolate into that clause the words, "in fra- 
ming their Constitution,'' and thus to make out 
the argument. The whole foundation of his 
argument fails; and therefore his allegation, that 
here has been legality on one side and illegality 
on the other, fails. I aver that the Topeka Con- 
stitution is as legal as that — as legal in its form, 
as legal in its inception, as legal in all the steps 
that have been taken with regard to it, in every 
particular; as much within the purview of the 
power of the people under that clause in the 
organic law, as the action of the Legislature. 



11 



I deny the legjality of the first Legislature, as I 
stated ; and I deny, too, the assertion of the hon- 
orable Senator from Georgia, that It has ever been 
admitted or recognised by Congress. I say it 
has never been recognised in any shape or form. 
The Senatoi appealed to the fact that at the las^t 
session of Congress, in the general appropriation 
bill, we made a provision for the payment of the 
Legislature of Kansas. Congress, at the previous 
session, refused to make that appropriation. 
When we made it at the last se.^sion of Congress, 
it applied only to a future Legislature. It applied 
to the one now in existence. It could not go into 
operationflntiltheheginningof the fiscal year, last 
July, going forward to next July. The first Legis- 
lature had become defunct; it had ceased to per- 
form its functions ; a new one was to be elected, 
and, that fact being knovvn, Congress made pro- 
vision for its payment — not for the last one; that 
has not been made to this da^' ; and under a law 
of Congress, which the chairman of the Commit- 
tee on Finance well understands, the President 
cannot apply money thus appropriated for the 
service of the current year, from last July until 
the next July, to the payment of a preceding 
debt for a Legislature whose term of office had 
expired. 

But admitting the legality of the Legislature, 
usurping though it was, and admitting also that 
it had been recognised by Congress, nothing fol- 
lows, except that its action was advisory. So was 
the action of the Topeka Legislature. The peo- 
ple were not bound by one more than the other ; 
one was not more rebellious than the other; one 
had as much force as the other, because the sub- 
stratum, the authorilj- from Congress to the Legis- 
lature to call a Convention, and prescribe rules for 
that Convention, was wanting. 

If I am right in this position, the only question 
that remains is, does it fairly represent the peo- 
ple of Kansas? Does the vote, taken under these 
circumstances at that particular period of time, 
represent the will of the people of Kansas, fairly 
expressed ? I have commented on that It is a 
question of fact, and it is a question of fact for 
us to settle; and we are uot precluded by the as- 
sertion that here is legality on one side and ille- 
gality on the other. Have the people of Kansas, 
by any act of theirs, under any circumstances, at 
any time, manifested clearly to the Congress of 
the United States their desire that the Lecomp- 
ton Constitution should be accepted, and that 
they should come into the Union as a State un- 
der it? That is the question submitted to us as 
the tribunal to decide it. What have we against 
it? What have we to reply ? To what facts can 
we appeal, as an answer to any allegation that it 
was so ? We have in the first place the admitted 
unfairness and dishonesty of the whole proceed- 
ings from the beginning. I have adverted to 
them, and thej^ are matter of history. If it was 
supposed that they would fairly represent the will 
of the people of Kansas, (and it was designed 
they should,) why not submit the whole Constitu- 
tion fairly to them ? Why present to them two 
slave Constitutions, and bid them take their choice 
between those two ? Why accompany those two 
with an oath to support one or the other, both 



being abhorrent to a large portion of the people 
of Kansas 7 Why place the question in that 
form? If it was the will of the people, if they 
had auj^ idea that a majority of the people of 
Kansas would sustain it, why not submit the 
question fairly to the people of Kansas, without 
any of those restrictions? It is not a sufficient 
answer to satisfy my mind, to say that all legal 
forms have been complied with. Why was it not 
done ? 

Anotlicr answer i^ made in the thunder tones 
ot the last vote of the people of Kansas, when, 
the question being submitted tothemby the Legis- 
lature now existing in that Territory, they threw 
a majority of over ten thousand votes against that 
Constitution! Is that no answer? Sball we not 
receive it as proof? 

The honorable Senator from Georgia, on this 
particular matter, said, in answer to tlie iu'.juiry 
which I now make, why the present Legi>litture 
might not repeal the Convention law, or might 
not order a new vote to be taken on the Consti- 
tution, to ascertain what is the will of ihe people 
of Kansas, that its power was exhausted What 
power was exhausted? Where do they get F.oy 
power on the subject? He admits that ihey had 
no power from the Congress of the Unitcil States. 
There was no enabling act; no power to ftnme 
a Constitution had been conferred on them, from 
any quarter whatever ; and yet he says the power 
was exhausted. The power that they u.-sumed 
was exhausted ; but, if it is in the powfr of a 
legal Legislature of Kansas to call a Con\<'i^tion, 
and have the action of the people on a p!)rtioQ 
of the Constitution, is it not in the j-ow-r of 
another Legislature of the same, Territory nf Kan- 
sas to call a meeting of the people, in 6\i>- lorm, 
to pass upon another question connected with 
the same subject, and the whole subject '! If he 
had shown us where the power was ui rived 
from, if he had shown that the Cougres;- nl tbo 
United States had ever conferred any |n>iver on 
the Legislature of Kansas to act on ilmt ques- 
tion, it would be one thing; but denyii.g iliat, 
and admitting that no such authority whs luu- 
ferred, he yet says, in answer to a question put 
by the honorable Senator from Wiscon^i!l. [Mj-. 
DooLiTTLE,] the power was exhausted. I shuuld 
like to have him, or some other Senator, sliow 
me. and show the country, whence was the der- 
ivation of this power ; and to answer the ques- 
tion derisively, if they had none conferred on 
them, how they could exhaust that which they 
never possessed? and why the existincr Legisla- 
ture has not the same right and authority to nut 
the question to the people of Kansas, that the 
previous Legislature had ? 

The President and the honorable Senator from 
Georgia agree on one point, and that is, as to 
who are the people ; and I agree with them. The 
people, in the language of this law, and as we 
understand it with reference to suffrage, are tho.^e 
people who are legally qu.ilified to vote. Such 
questions, I also agree with them, are not to be 
settled in mass meeting and without form, but 
are to be settled in due form by those who ha\e 
the authority to exercise the right of suffrage. 
But this statement, which was argued at such 



12 



leiiR'ii. and ^liich noboflj would ever think of 
de^iyiij^, uvoicis tbe true (juestioa at issue. The 
quesuiori at issue is, whether a fair opportunity i 
hao been accorded to tliis very people to exercise 
the rii/hi of suffrage on this question ; and that j 
the President and the Senator from Georgia, who j 
tindertakes to defend the message, have not dis- 
cussed at so much length. Ihey assume itji 
they take it for granted ; we deny it. What is j 
the argument to sustain it? Simply that, in as- i 
certiiining the will of the ])eop]e,.,in the form j 
prescribed, at the time prescribed, with refer-! 
ence to the Lecompton Constitution, all the] 
forra-j of law prescribed by the Legislature have] 
been rompUed with. I dislike, exceedingly, to 
hear, as the sole answer to such allegations, that 
the thing was formally done. 

The honorable Sen.i.tor from Georgia is an 
eminc'ut lawyer, and he knows that to be no an- 
awe?- in courts of law. It is no answer lo an al- 
legation of fraud, to say that the forms have been 
complied with; and, as a matter of history, v,'e 
kco^i^' that there is no more dangerous mode of 
attacking the liberties of a people, than under 
the tonus of law. It has been well remarked 
that, for hundreds of years, Home was a tyran- 
ny, exercising at the same time the forms of re- 
publican iaslitutioDS. Tyrants always keep up 
the forms as long as they are able, wlien defraud- 
ing the people of their rights, because in that 
m.mner they are able to prevent, perhaps^ that 
outbreak which would follow a resort to abso- 
lute physical force. Charles the First lost his 
head for tyrannizing under the forms of law; 
James, his son, lost his throne for the same rea- 
son ; and our anceitofs wrested this country 
ffGni (rre^t Britain for attempting to tyrannize 
over them under the forms of law. Yet this is 
the only answer that is made — ''here is a legal 
form.' The Legislature thus forced on the peo- 
ple of Kansas assumed to appoint a time for a 
Convention to provide a mode of voting; and 
that Convention assumed to make a Constitution. 
They assumed to put it to the peoi)le ; they pre- 
scribed their own forms, and followed out their 
own manner of doing it j and now, when we 
.:oine forward and say, that from the beginning 
to the end they designed to defraud and did 
defraud the people of Kansas, the answer is, 
" We cannot go into that subject, for it was all 
done under legal form.'' My reply is a very 
simple one : that fraud vitiates everything. 

What were these forms? Let us enumerate 
them in distinct order, so that they may be un- 
derstood by the people. A Legislature was forced 
ou the people of Kansas, in due form, by a Mis- 
souri invasion. Does the honorable Senator from 
Missouri (I do not see him in his seat) want 
proof of that ? The proof is found in the records 
of the committee of the House of Representa- 
tives that investigated the subject, ^'obody has 
undertaken to deny it. The Legislature acted 
■without legal right, as I have demonstrated, but 
in due form, in appointing a Convention, but 
they prescribed a test oath, which rendered it 
nnav.iiling. My honorable friend from Vermont, 
who sits beside me, [Mr. Cor,LAMEU,] informs me 
\taA I am mistak&n on that point, and he says 



the test oath has been repealed. A portion of it 
might have been repealed, but the whole of it 
was not. 

Mr. COLLAMEPt. That portion requiring an 
oath to support the fugitive slave law had been 
repealed. 

-Mr. rKSSENDEX. That was part of the test 
oath. That may have rendered it more odious ; 
but still the objection lies to tlie principle, that 
no Government in the world, such as ours, act- 
ing under a repul)lican form, has a right to 
establish any test oath at all, with reference to 
the exercise of the right of suffrage; or go any 
further than adopt such measures as are neces- 
sary to show that a man is qualified to vote. 
Tliatwas the next step. 

A census was taken, in due form, not inclu- 
dingone-haJf ofthe people of the Territory. Ne.xt, 
the members of the (Jonventiou forfeited their 
pledges. What were those pledges? If we may 
trust to what has been cited here, and not con- 
tradicted, a large proportion of the members of 
the Convention pledged themselves to submit the 
whole Constitution to the people. These pledges 
were broken ; and I heard a very singular excuse 
given for this the other day, by the honorable 
Senator from Mississippi, [Mr. Brown,] who said 
that their constituents had released them from 
their pledges — that they had been released by the 
people to whom they had given them. I should 
like to know how or in what form that release 
v/ag given. They held themselves out to tbe 
people, on paper, pledging their honor that, it 
elected delegates to the Convention, they would 
submit the Constitution to the people. They 
refused to do so — they forfeited their word after 
they were elected. Having been elected, they re- 
fused to perform their promise. It is charged 
on them, and the excuse is, that those to whom 
they made the promise released them from the 
obligation of keeping it, I should like to ask 
the honorable Senator from Virginia, [Mr. Ma- 
son,] with his high sense of honor, (and I believe 
it is higher with no man,) whether he could be 
excused from an obligation thus given in wri- 
ting, by any individuals who might come to him, 
and say, " We do not hold you to it; party pur- 
poses require a little different disposition." Hon- , 
orable men never would make such an excuse 
for breaking their word of honor thus given. So 
long as there was a single voter who threw his 
vote for me, or might have thrown his vote for 
me, on my written word or my spoken word that 
I would act in a particular manner, I should 
deem myself base if I could retain the office thus 
bestowed on me, and at the same time refuse to 
redeem the pledge that I had made. 

The next step that was taken under the forms 
of law was to present two slave Constitutions, 
(as I have before stated,) and tell the people of 
Kansas they might take their choice between 
them, provided they would swear to support the 
one which might get the majority of votes. 

The last step in this proceeding, under the 
forms of law, was to return six or seven thousand 
votes as cast on the Constitution on the 21st of 
December, when it is satisfactorily shown that 
no more than two or three thousand were thrown. 



13 



Does any Senator ask me where I get myiiuthor- 
ilyf'or this? I get it from the same authority to 
■which the Presideut appeals to show that there 
was rebellion in Kansas — Govei-nor Walker and 
Secretary Stanton. They say it, and nobody 
undertakes to dispute it. 

Now, all these forms having: been complied 
with, pledges having been fovfl-ited, the question 
not submitted, and a cheat in the vote, we are 
told that legality is all on one^ide, and iilegalii.y 
on the other, and we are bound to take the re- 
sult; in other words, that this is a legvil ratifica- 
tion.' That is the principle laid down, and it 
anaounts to tliis : that because it h;ig never been 
submitted, therefore it Ims lieen Icgnlly adopt- 
ed — a logical conclusion to which I am entirely 
unable to give my assent. 

What is the repl\' which is made to the alle- 
gation of fraud? The houoriible Senator from 
Georgia makes it. Wis reply is, that it must be 
investigated in the proper place. What is the 
proper place? Is not this the tribunal? Where 
is the question to be settled, if not here? Are 
not we the tribunal to settle the question whether 
Kansas shall be admitted as a State under this 
Constitution? Are not we the tribunal to settle 
whether the matter has been fairly submitted to 
the people of Kansas, and whether they have 
adopted the Constitution ? It comes before us 
for action. If a better tribunal than this can be 
found to settle the question dclinitely, I wish the 
honorable Senator had pointed it out. 

The votes on the Constitution are returned to 
Mr. John Calhoun. He is the man who forfeited 
his pledge ; he is the man who broke his word ; 
he is the man who promised to submit this Con- 
stitution to the people of Kansa.s, and refused to 
do so. The votes are to be returned to him ; he 
declares them ; he claims no power to go behind 
the returns ; and he is the person to make a con- 
clusive return on this subject. When we wish 
to inquire into the truth of these allegations, 
and judge whether this Constitution does fairly 
express the will of the people of Kansas, is it 
enough to reply, " the question has been settled 
by Mr. Calhoun, and he is the proper tribunal ; 
and the Congress of the United States, in deciding 
whether or not Kansas is to come into the Union 
as a State, has no right to inquire whether a fraud 
has been committed or not, or whether the will 
of the people of Kansas has been expressed or 
not?" I reply again, that the Senator from 
Georgia, for he is an eminent lawyer, well knows 
the principle that fraud vitiates everything, no 
matter what. It vitiates the record of a court of 
law. It sets aside a judgment. This is claimed 
as a judgment ol the people of Kansas; a judg- 
ment that is conclusive by virtue of the decision 
that has been made there by a person who is a 
party to the whole thing. It is claimed as a 
judgment. We ask to go behind it, and inquire 
into it. It is said we are precluded. On what 
principle? Not on the principle of law, for if 
fraud will vitiate the record of a court, and ena- 
ble any proper tribunal to inquire into it, I wish 
to know why fraud will not vitiate an election, 
as has always been held from the foundation of 
the Government to the present time, when that 



election is brought before the very tribunal which 
is appointed by the Constitution to settle the 
question ? 

-My concln?ion, then, Mr. President, on all this 
matter, is, simply, that the President of the Uni- 
ted States, in sending this communication to us, 
his written argument, has deliberately chosen to 
omit the most important facts in the case, as well 
known to him, or which should have been as well 
known to him, as any man ; for he cannot plead 
ignorance. Th'-j' are facts apparent on the rec- 
ord — palpable, plain, unmistakable. He has 
omitted to state them, and he has stated others 
which are disproved by the record accompany- 
ing the message. It has been shown over and 
over again, beyond all power of contradiction, 
and I take it few men can be found with hardi- 
hood to deny it, that the vote of December 21st, 
on the Constitution, does no't express the will of 
ihe majority of the people of Kansas. The at- 
tempt is merely to estoj) us, and to say that, by 
virtue of the success of these fraudulent prac- 
tices, the people of Kansas have no right to in- 
quire into the matter. Sir, I deny the principle. 
It exists neither in law, nor in equity, nor in leg- 
islation, nor anywhere where truth and justice 
prevail. Therefore, whai I have to say in reffr- 
ence to that matter is, that considering the ques- 
tion in that point of view, this Constitution pre- 
sents itself to my mind as an outrage, deliberately 
planned, followed up remorselessly, and perhaps, 
from the indications we have had, designed to t>e 
carried throtigh and imposed oit the people of 
Kansas. All I have to say. is, that it will meet 
with my resistance, feeble as it may be, here, so 
long as I am authorized to act on it, under the 
forms of the Constitution of the United States. 

Sir, I have considered this question so far 
wholly with reference to the simple point wheth- 
er, in the exercise of what is called popular sov- 
ereignty in Kansas, there has been any adoption 
by the people of that Territory of the Constitu- 
tion thus presented. That is only one branch of 
the remarks which I intended to present to the 
Senate, and the Senate will pardon me if, on 
this occasion, I go a little further, and treat of 
what I believe to be still more important, at any 
rate, as important, and, as affecting my mind as 
materially, with reference to the whole subject. 
I have presented the question on the ground of 
popular sovereignty. The party to which I be- 
long have rejected the idea of popular sovereignty 
in the Territories, from the beginning. We do 
not reject the idea that the people have a right 
to rule. We admit it in our principles and our 
practice; but we have rejected the idea that 
Congress had a right to change the whole form 
in which it had been accustomed to exercise 
authority over the Territories of the United 
States, and lay those Territories open to Slavery 
when they were free, under the name of giving 
the people the right to prescribe their own in- 
stitutions in their own way. Since this doctrine 
of popular sovereignty has been forced on us — 
since it has been adopted, to a certain extent — 
we have been compelled to yield to it. We 
were in hopes, that even in the exercise of that 
principle, of the right which it was said the 



14 



people had to fran^p their own institution:?, Kan- 
sas would be a free Htiite. We sympathized 
v/ith it,, iu the hope tliat it would be available. 
We took it as the shipwreclied mariner talies the 
first plank ou vrhich he can lay his band in order 
to escape death. The boon was apparently held 
out, if it was a boon, to the peo[)le— the right to 
settle Avhat their institutions should be by their 
owu popular yote. We rejected it when offered, 
because we believed it was a breaking down of 
the landmarks which Congress had adopted with 
reference to the Territories, and establishing a 
principle thwt would carry civil war and Slavery 
iuto the Territories. Our predictions ia that 
particular have been verified. 

Why have we rejected it; why have we repu- 
diated it in regard to the Territory of Kansas ? — 
because iu the remarks which 1 have to make I 
confine myself to that. I answer for myself when 
I say that I repudiated it because, to me, the cir- 
cumstances under which it was introduced were 
such as to lead to the conclusion that, in ray 
mind, it would make no ditfL-rence even if the 
whole people of Kansas had adopted a Constitu- 
tion which recognised Slavery I expressed my 
sentiments on that subject on a former occasion 
very distinctly ; and if I may be excused for doing 
so, although I am ordinarily averse to attempting 
to repeat myself, I wish to refer to what I said 
when the Kansas-Nebraska bill was under con- 
sideration, as the ground which I hold at the 
present time. 1 said then : 

"If seiitlem'iii (■-xpect lo quiet all lliPse comrover ieshy 
a^'opiiiii; wiidt my coiist!iut-nts uo-a' c(jii,-~ii!er, and very 
Wfii consider, an act of gross wroinr. under wl'juevcr 
P';c't*'nce it m ly l)e, wheihcr on the firround ol' the uncon- 
Biiludojialiiy of the former a,;t, or any oilier, af er having' 
re-ltd so lonif satisfi-d wiih it. je" me tell iliem that t!ii>. 
in in>' judgment, is the bexini ing of their (roubles I can 
ans^ver f r one individual. I have avowed inv o vn op- 
piisitio.i to Slavery, and I am as strong ia it as my liieiul 
fnmOhin, [Mr Wade] I wish to say. acain, 'hnl [ do 
not m-an that I have any of the particular feelin": on the 
!jul>jeet which gentlemen have called ' sickly sentinient- 
slily ' but if this mater is lo he pushed beyond what ihe 
Constiluuou originally intended i ; if. tor poli ical rnir- 
poses, and with a political de-iyn anJ effect— hecause 
i- is a political de-ign and effect— we are to i.e driven to 
the wall by legislation here, letmet.ll ^entlem^i that 
Ihi.s is not the hist they will hear ofihe quesiio i. I'erri- 
tories are not States, and ifthis re.s-triciioii is ripealed 
■with regard to that Territory- it is not ytt in Ihe Uiion, 
and yo I may be prepared to understand that, with the 
ass'.ntof tlie free Stales, in my .iud'.,Mnent. it never will 
come into the Union, excpt widi exclusion of slave 
ly:— Appendix to Congressional Globe, vol 29, p. 322 

9 111 

I took the ground then, that if the Missouri 
restriction were repealed, and this Territory, 
which had been dedicated to Freedom, thrown 
open to the incursions of Slavery, for the purpose, 
as I believed then, and believe now, of making a 
slave State of it, it was not the last of my op- 
position ; that if it presented itself in my day 
■with a Constitution allowing Slavery, I should 
oppose its admission as a State. I am willing to 
go further now, and. say that, viewing it as I did 
at the time, and as I do now, to be an outrage, 
' to be a breach of compact, to be a repeal of that 
restriction for the purpose of making slave States 
out of Territory which was before dedicated to 
Freedom, I hold myself at liberty to contest it, 
now and at all times hereafter. Establish Slavery 
in that State, if you please, by force or fraud, for 



nothing but ff rce or fraud can do it; and the 
result with regard to myself is, that on that sub- 
j.nT, T hold the liborty to agitate, I shall hold tho 
l.beity to agitate, and T will agitate, so long as 
n single hoi)e remains that Slavery may be driven 
from the Territory thtis stolen, robbed, from Free- 
(Ir'ni. I have no hesitation on that point; I am 
()t(ts;cily willing lo avow it now and before tlie 
(■(.itiiitrv. While I say now, as I have said before, 
that with rcgaid to the slave States of this 
Union, I would nA, if I could, interfere with their 
institutions ; while I hold that under the Con- 
stitution of the United States we have no right 
to interfere with them directly, and that under 
the. laws of morality we have no right to do in- 
directly that which we have no right to do direct- 
ly; and whi'e f ara willing they should enjoy 
:ill the benefit they can get from their institution, 
nndi«tttrbed by me, here, henceforth, and forever, 
as long as they may choose to embrace it; with 
regard to this Territory, which has once been 
dedicated to Freedom by a solemn compact, and 
which has been stolen from Freedom by the 
rcfieal of ihe Missouri compromise, and where 
rilnvery has now been forced on the people by a 
series of outrages such as the world never saw — 
a man can hardly imagine the gross character of 
these outrages — I hold myself free from all ob- 
ligation. Foice it there if you will; force in this 
Consiitution if you please; but I hold myself 
absolved, so far as the Territory 'S concerned, 
from all obligation to receive it. 

I was commenting on the idea of what was 
called popular sovereignty, and was al)out to say 
that I considered it at the time, and now consider 
it, a mere pretext. It was a mere e.^cuse for the 
repeal of the Missouri restriction. It Avas de- 
signed, in my judgment, and I stated it deliber- 
ately, for the purpose of making Kansas a slave 
State. This was denied ; it was denied indig- 
nantly on this floor. I have been myself rebuked 
for undertaking to question' the motives with 
which the act was done. Sir, I appeal to the re- 
corded speech of the honorable Senator from 
South Carolina, [.Mr. PIvan's,] who stated, in sub- 
stance, subsequent to the passage of the act, that 
it was designed to make Kansas a slave State. 
I appeal to the speech made by a Northern man, 
I regret to say a Representative from Pennsyl- 
vania, in the other House, who said, substan- 
tially, that it was designed to give Kansas to 
Slavery, as a sort of offset to wh.it we obtained 
in California, south of the line of 36° 30'. I 
appeal, moreover, as proof conclusive, to the 
facts which took place at the time ; to the nature 
of the bill; to the want of necessity for the 
passage of any such act for any other purpose ; 
and to the peculiar provisions of the bill, which 
so hemmed in Kansas, and hedged it about with 
slave territory, that, apparently, it was impossi- 
ble for the pcojile of the free States to make 
their entrance into it. 

What else could have been meant by the repeal 
of the Missouri restriction? I know some gen- 
tlemen said, " it is a matter of feeling with us ; 
we do not think anything will come of it." It 
was answered with the manifest reply, "will you 
set the country in a blaze from one end to the 



15 



other, merely upon a point of honor ; for a thing 
that you do not intend or ■wish to avail your- 
selves of?" If it could be rendered more mani- 
fest by anything that could bo appealed to, it 
was proved by eveiy after transaction with ref- 
erence to the matter; it was proved by the forci- 
ble invasion ; it was proved bj^ that series of 
outrages to which I have referred ; and now, at 
this day, nobody undertakes to deny what we 
then charged. 

I say. therefore, that this popular sovereignty 
idea was a pretence. It was held up to the people 
for a short time, as, in. fact, the main thing to be 
accomplished by the bill. The honorable Sen- 
ator from Georgia, the other day, undertook to 
say, here in his place, that he waa familiar with 
that provision, and that it was not introduced 
for any such purpose, but simply for the purpose 
of excluding a conclusion ; that is to say, that 
there were some gentlemen who held there was 
danger, if you repealed the compromise, that the 
old French and Spanish laws would be reinstated, 
and that Slavery thereby' would be established in 
Kansas, and that this clause was put in merely 
for the purpose ot negativing that conclusion. 
That is not so, becauss, if you appeal to the bill 
itself, the very next provision settles that matter, 
namely : 

'• Provided, That nothing herein contained shall b"^ con- 
strued lo revive or put in loree uny 'aw or r.m,Ia;i.>ii 
■which may have exi It-d prior lo the act c the Cili iMarch, 
Ib'SO. eii her proieciiiig,estat)U.-l>ing,prohibiuiig, or alioli th- 
ing Slavtry.'' 

That is the clause which affects the question to 
■which the Senator from Georgia alluded. 

It is proved by another fact. The honorable 
Senator from Illinois, in his speech which he made 
on the night the bill was passed, the last night, 
the memorable night, declared that this clause 
(which was not an amendment, but came in as 
one of the changes of the committee who reported 
the bill, and was moved by him) was the main 
feature of the bill, and the removal of the Mis- 
souri restriction was only an incident. I dare say 
the Senator remembers it. He said that the great 
object of the compromises of 1850, as they were 
called, the leading idea of the compromises of 
1850, for which he contended, was to give the 
people the power of deciding what their institu- 
tions should be in the Territories ; and he went so 
far on that occasion as to contend that they should 
be allowed not only to establish but to exclude 
Slavery ; that is to say, that no provision should 
exist which would not give the people of the Ter- 
ritory both powers. I have his speech before me. 

Mr. DOUGLAS. I did not intend to interrupt 
the gentleman from Maine ; but he said a moment 
ago that the object of that bill was to make a slave 
State of Kansas, and that nobody denies ii. 1 
miist say to him, that I interpose my positive de- 
nial. It was not the object to make it a sla/e 
State ; it was not the object to make it a iree 
State; but it was the object to leave the people 
of Kansas perfectly free to do as they pleased in 
the management of all their domestic institu- 
tions, Slavery included. I do not desire to say 
anv more than that at this time. 

ilr. FESSENDEN. We use language in debate 



which the Senator is aware is perfectly under- 
stood; but, if taken literally, goes perhajis fur- 
ther than it should. When I say that nobody 
denies it, I do not mean that everybody admits 
it. I mean to say, simply, that the matter is pal- 
pable, from after circumstances as well as from 
what, took place at the time ; and from the ab- 
sence of any other reasonable motive, and from 
what has taken place since, in the progress of af- 
fairs toward making it a slave Territorj-, no rea- 
sonable, unprejudiced mind, not connected with 
the transaction, can deny, on any good, logical 
ground, that such was the object with which the 
Missouri compromise line was repealed. 

But, sir, I was replying to the idea that this 
clause was intended, as was suggested by the 
honorable Senator from Georgia, as a mere ex- 
clusion of a conclusion. The fraraer of that bill, 
in his speech on that occasion, said that the idea 
of popular sovereignty was the principal thing 
aimed at in the bill ; and that the removal of 
the Missouri restriction, instead of being the 
principal thing, as contended by the Senator 
from Georgia, was merely an incident necessary 
in order to etfect the object of conferring popu- 
lar sovereignty. That is the idea. I stated that 
it was a pretence. I so considered it. We so 
considered it. We so considered it on our side 
of the House, and so stated it. But I now go 
further, and say that what I then considered to 
be a pretence for the repeal of the Missouri com- 
promise, I now consider to have been a delusioa 
and a snare ; and I am willing to give my reasons 
for this opinion as briefly as I can. 

It was held out to the country as the main 
feature of that bill, that a great boon was to be 
conferred on the people of the Territories ; that 
whereas, by the operation of the Missouri re- 
striction, they had been er.cluded from the power 
of deciding what their own domestic institutions 
should be, by the repeal of that restriction this 
power was conferred on them. L pon whom? 
What was understood at the time? That it was 
conferred on the people of the Territories, 
as the people of the Territories, and acting 
with regard to their own Territorial institu- 
tutions. That idea was boldly proclaimed by 
the Senator from Illinois. That idea was pro- 
claimed as boldly by Southern gentlemen on this 
floor, on the occasion of the Kansas debate. It 
was denied by nobody, if I recollect, except the 
honorable Senator from Mississippi, [Mr. BiiowN,] 
and a hint of dissent was given by an honorable 
Senator from Virginia : but, with these exceptions, 
according to my recollection, no one here denied 
it. Southern men and Northern men all agreed 
that, by the repeal of the Missouri compromise, 
it was intended to confer on the people of the 
Territories, as people of the Territories, the power 
and right to settle their own institutions in their 
own way ; to say whether they would have Sla- 
very or not. It was so presented to the people 
on the stump, in the years 1854 and 1855, through- 
out all the 5sorthern States. 

Mr. BENJAMIN. If the Senator from Maine 
will permit me, I M'ill make a remark here. I 
intend hereafter to make a more formal answer 
to his argument ; but on the proposi-Jon he is 



IG 



now stating, I beg leave to call the gentleman's 
uiind lo ihe laci., lliat when ihat particular sub- 
ject in the diicussiou of the Kansas bill was 
undef consideration, it was distinctly stated that 
the supporters of that bill, North and South, en- 
tertained ditferent views as to the rights of the 
people of a Territory to exclude slaves from a 
Territory ; and for that reason the clause was 
added to the section of the bill which gives 
power to the people of tlie Territory, "subject 
only to the Constitution of the United States," 
the intent being to leave that particular power 
subject to construction by the courts of justice. 
"We carried out that intent by providing, in 
another clause of the bilh, for an appeal to the 
Supreme Court of tlie United States on every 
question touching Slavery, whether the amount 
iu contest was two ttiousand dollars or not. The 
gentlemen from the South who supported the bill 
contended that it was not in the power of Con- 
gress to confer on the people of a Territory the 
right to exclude 'slaves, because our right to 
carry our property into the Territories was guar- 
antied by the Constitution. Gentlemen trom the 
Nortli denied it; and on that particular question 
this very clause was inserted into the bill, of a 
grant of power subject only to the provisions of 
the Constitution of the United States, referring- 
to that contested question which, by common 
consent, wa5 to be L'ubmitted to the Supreme 
Court, and lias been decided, in the Dred Scott 
case, iu conformity with the views then enter- 
tained by gCiitlemen from the South. 

Mr. FKSSKNDEN. I remember that contro- 
versy very well, and I know that something of 
that sort was said, but the matter was not ques- 
tioned as a matter of argument. Gentlemen did 
not seem disposed to discuss it. Nobody, as I 
said before, started the idea, then so monstrous, 
then so new, now established, as the Senator 
says, (if he considers it established,) by the opin- 
ion of the Supreme Court; nobody dwelt upon 
it. That clause means nothing more; it is sub- 
stantially in all the Territorial bills ; not in the 
same language, but to the same extent; that is 
to say, that they shall have all power of legisla- 
tion in the Territory, subject to the provisions of 
the Constftution of the United States ; but it 
was not contended then, in argument, that the 
Constitution of the United States, by its own 
force, carried Sla-ery into the Territories, and 
protected it there. It was hinted that a different 
opinion prevailed ; but the gentleman from North 
Carolina [Mr. Badgeii] disavowed it. The gen- 
tleman from Maryland, [Mr. Pkatt,] if I remem- 
ber aright, offered an amendment, which he sub- 
sequently withdrew, giving expressly to the 
people of the Territories power to exclude or 
admit Slavery, at pleasure. The language of the 
act, as my friend from Ohio [Mr. Wade] says, 
carries the same idea with it. 

But the point to which I was directing my at- 
tention was simply this : that at that time it was 
not pretended but that the people of the Territo- 
ries had power, or were intended to have power, 
under that clause, to legislate upon the whole 
subject — subject, however, as of course every- 
thing of that kind must be decided to be, to the 



Constitution of the United States. I am speak- 
ing of what the idea was then ; and I was en- 
deavoring to illustrate my position, that it was 
intended as a snare and a delusion. Why? It 
was so presented here: it was 'so presented in 
the country ; it was so argued through tho 
free States. Was it the designof gentlemen who 
placed it^n that condition to have two grounds 
on which they might sustain the Democratic 
party — South, on the point that there was no 
consi.itutional power; North, on the point that 
there was constituthjnal power — and ihusyibrate 
in the scaie, on the one side or the other, accord- 
ing as they might catch votes, as they assumed 
this or that doctrine'/ Was that the calm, set- 
tled iutention of that bill V It makes out my po- 
sition of its design to establish Slavery there, 
much more strongly thiiu any aigument I have 
i.ied. 

Iiut what is the result, after it was thus argued ? 
When the Cincinnati Convention met, M'e had an 
entire change of doctrine. The Cincinnati Con- 
veation intimated a ditferent opinion; and tho 
Democracy of the North, which had talked so 
much about popular sovereignty before, which 
universally in the Senate had claimed that the 
people of the Territories had the right, as Terri- 
tories, to settle the question of Slavery in their 
own way ; the Democracy of the North, when 
they met in Cincinnati, yielded to the doctrine 
promulgated there, that it was only to be settled 
when they came to form a State Constitution, 
because that is the clear inference from the plat- 
form there adopted. 

Vou have gone still further, and now assume 
the doctrine that the Constitution by its own 
force not only carries Slavery into the Territories, 
but protects it in the Territories until t^ State 
Constitution is formed. Is liiat the doctrine? 
Is that what is now assumed by the Supreme 
Court? Suppose it to be so, I should like to 
know what new power was given to the people 
of the Territories by this famous clause in the 
Kansas bill granting popular sovereignty. Did 
they not havk' that power before? Was it neces- 
sary to repeal the Jlissouri compromise in order 
to give the people of the Territory of Kansas a 
right' to proiiibit or establish Slavery, by their 
State Constitutioa, as they saw fit? The Mis- 
souri compromise provided nothing further than 
that Slaveiy should not be carried into territory 
north of 3G° 3(y. Suppose, without the act, the 
people of Kansas, when they came to form a 
State Constitution, should have provided that 
Slavery might exist in that State, legalized and 
authorized it, and sent that Constitution to Con- 
gress, and it was admitted ; would not that have 
been a repeal of the Jlissouri compromise? 
What was gained, then, in any form, I should 
like to ask, by this famous provision introduced 
into this bill, and which has been called a stump 
speech ? 

Mr. DOUGLAS. I will answer the Senator 
from Maine. Tliere was on the statute book an 
act prohibiting the introduction of slaves there 
"forever;-' not confined to the Territory only, 
but extending forever; and it is useless to dis- 
guise the fact that there was a large political 



17 



party in this country who claimed that "forever" 
was to apply to a State as well as a Territory, 
and hence ihey resolved that they would never 
admit another slave State into this Union, wheth- 
er the people wanted it, or not. 

Mr. FESSKNDEiX. How nsolved it? 

Mr. D(3UGLAS. Resolved in county meetings, 
in Congressional Conventions, in State Conven- 
tions, against any more slaveholding States, 
whether the people of the proposed State de- 
sired Slavery or not. The Democratic party 
took the ground that the people of each Territo- 
ry, while a Territory, should be left free, \vithoiit 
any Congressional intervention, to fix their in- 
stitutions to suit themselves, subject only to the 
Constitution of the United States ; and that, 
when they came into the Union, they should 
come in with just such a Constitution as they 
desired, subject only to the same restriction. 
Here was an act on the statute book which pur- 
ported to invade both these rights. The Kansas- 
Nebraska bill repealed that prohibition or re- 
striction of .Slavery, leaving the people perfectly 
free to do as they pleased, both while a Territory 
and wlien they formed a State Constitution, sub- 
ject only to the limitations of the Constitution of 
the United States. I repeat, therefore, the object 
of that bill was to remove all restrictions, and 
make the jirinciple general, universal, that the 
people should fix all their institutions. Slavery 
not excepted, both while a Territory and a State, 
subject only to the limitations of the Constitu- 
tion. 

The Senator now comes forward and says that 
since that time the Supreme Court of the United 
States, in the Dred Scott case, has decided that 
the Missouri restriction was unconstitutional, 
and that, therefore. Congress could not delegate 
to a Territorial Legislature the power to pro- 
hibit Slavery ; and hence, he says, this act con- 
ferred no new rights on the people of the Ter- 
ritory. His argument goes too far. If that 
be the true construction, it shows that the 
only effect of the Kansas-Nebraska bill was to 
take an unconstitutional and void statute from 
the statute book. 

You assume the correctness of the Dred Scott 
decision for the purpose of your argument. I do 
not blame you for assuming that, for it is a de- 
cision by the highest judicial tribunal on earth, 
the tribunal authorized by the Constitution of 
the United States to decide it. They have de- 
cided it, and we are bound by the decision, what- 
ever may have been our individual opinions i)re- 
viously. That decision establishes the fact that 
the Missouri restriction was unconstitutional and 
Toid ; the fact that Congress cannot prohibit 
Slavery in a Territory ; the fact that the dogma 
of the Wilraot Proviso was void, and would have 
been a nullity if it had been imposed on the Ter- 
ritories. If that be so, was it not wise to re- 
move that void legislation which remained on 
the statute book only as a snare, or as a scare- 
crow, and which ought not to be there, because 
it was in violation of the Constitution of our 
country ? I ask, was it not wise to remove it, 
and to say plainly, in clear and explicit language, 
that our true intent was to leave the people of a 



Territory, while a Territory, and also when they 
become a State, perfectly free to make their laws 
and establish their institutions upon all ques- 
tions, Slavery not excepted, to suit themselves, 
subject only to the limitations of the Constitu- 
tion of the United States? 

Mr. FESSENDEN. The honorable Senator, 
probably on account of my unfortunate mode of 
expression, did not exactly comprehend what I 
meant to say. I am very glad, however, to hear 
him now give the old original construction to 
this provision of which we have been speaking. 
He saj'S now that the intention was to confer on 
the people of the Territories, while Territories, 
the power to settle all questions, including Sla- 
very, in their own way, subject to the Constitu- 
tion of the United States. 

Mr. DOUGLAS. Of course. If the Constitu- 
tion prohibited the exercise of that power, you 
could not confer it. If the Constitution of the 
United States prohibited you from passing the 
Missouri restriction, you had no right to pass it. 
If the Constitution allowed you to give the peo- 
ple of the Territory the right to prohibit Slavery 
while a Territory, this act conferred the power. 
In other words, the Kansas-Nebraska act con- 
ferred all the power which it was possible, by 
any legislation or any human effort, to give to 
the people of a Territory under the Constitution 
of the United States on the subject of Slavery. 
We could give no more, for we gave all we had — 
all that the Constitution did not prohibit. 

Mr. FESSENDEN. I am not quarrelling about 
that at all. I was saying that this was a delu- 
sion and a snare. Why ? Because it did pre- 
cisely what the honorable Senator says it did. 
It professed to hold out to the people of the Ter- 
ritories that they had a right which they could 
exercise to exclude Slavery, if they saw fit, or to 
admit it, if they saw fit, subject to the Constitu- 
tion. It was so stated and so argued to the 
country. 

Mr. BENJAMIN. I dislike very much to in- 
terfere with the course of argument of the Sena- 
tor from Maine ; but it is a historical truth, which 
cannot now be shaken, that during the discus- 
sion of that bill, and during the preliminary 
meetings of its friends, which were made public, 
the fact was divulged, that its supporters differed 
in relation to that constitutional power; that 
some from the North contended that the people 
of the Territory had the power, if we gave it to 
them ; that Congress had the power to give to 
them authority to exclude slaves from the Terri- 
tory, whilst a Territory ; and that, on the other 
hand, the representatives of the people of the 
South determinedly resisted that pretension, and 
said, from the beginning, they would never agree 
to any act which in any manner might imply the 
concession of a right in Congress, or in the peo- 
ple of a Territory under Congress, to exclude 
them with their property from territory which 
was common soil, belonging to the people of the 
whole United States. 

The fact I have just stated cannot be contest- 
ed, for the reason that there is a special clause 
in the bill providing for the submission of that 
very question to the Supreme Court of the Uni- 



18 



ted States. Senators from the North, -who took 
the opposite view of the question, said, " very- 
well ; we differ on this constitutional question, 
but there is a tribunal in this country which can 
settle all these disputed points of jurisdiction 
without Ihe necessity of resorting to force or 
bloodshed ; let that supreme tribunal decide, and 
we will su.bmit." The people of the South never 
asked for anything else ; never sought any other 
solution of the question. Now, it is obvious that 
since the decision of the Supreme Court of the 
United States in the Dred Scott case, it is de- 
cided that from the origin all this agitation of 
the Slavery question has been directed against 
the constitutional rights of the South ; and that 
both Wilmot provisoes and the Missouri com- 
promise lines were unconstitutional. An attempt 
is made to go back on the interpretation of the 
Kansas act, and then, when that fails, lo ques- 
tion the authority of that tribunal whose right 
to decide in the last resort has never before been 
questioned in this country. 

Mr. FESSENDExY. Mr. President, I am not 
aware of any such provision in the Kansas-Ne- 
braska act, in regard to referring this question to 
the Supreme Court of the United States, as the 
Senator has referred to. If there is any such 
provision, he can find it. I know it was proposed, 
but it was not admitted at the time. But whether 
there is such a clause or not, would make no 
difference. Congress can confer no power upon 
the courts of the Uuited States, except under the 
Constitution. If they would have it »nnder the 
provisions of the Constitution, very well ; if they 
would not have it, it cannot be conferred by 
Congress. 

But I do not wish to be drawn off from the 
point I was arguing. I do not undertake to say 
that there were not gentlemen at the South, then 
members of the Senate, who held, or might have 
supposed and might have intimated, an opinion 
that there was no power on the part of the people 
of the Territories to exclude Slavery, until they 
came to form a State Constitution. That might 
have been so. What I was arguing was, that 
the idea held out to the country at the time was 
that the people of the Territories had the control 
of the subject, and would continue to have it 
while a Territory. I say it was so presented to 
the people in 1854 and 1855, at the polls, through- 
out the free States. I do not know how it was 
presented throughout the Southern States. I 
know that gentlemen on this floor, Senators from 
Southern States, avowed the doctrine that the 
people would have power to act on it as they 
<,hose, to exclude Slavery or admit Slavery. 

The point I was making, however, was one 
totally distinct from that; and it was, that no 
sooner had the people been induced to believe 
that such was the intention, no sooner had this 
pretence been made available, for the purpose of 
reconciling the people of the free States to the 
repeal of the Missouri restriction, than the Cin- 
cinnati Convention met and repudiated the whole 
doctrine of territorial popular sovereignty. What- 
ever the Senator from Illinois may now say with 
regard to his construction of that clause, what 
it meant in the beginning, the Democratic Con- 



vention of this country, in nominating a Presi- 
dent, especially repudiated that doctrine before 
any decision of the Supreme Court of the United 
Slates, and averred substantially that the people 
of a Territory had no right whatever to exclude 
Slavery until they came to form a State Consti- 
tution. 

Now, the Senator from Illinois has not even 
attempted to answer the question which I put to 
him, which was this: if the doctrine of the Cin- 
cinnati Convention is true — not the doctrine of 
this bill, as he asserts, but if the doctrine of the 
Cincinnati Convention is true — that the only 
power which the people of the Territories have 
to interfere with Slavery is when they form a 
State Constitution, what was gained by that 
celebrated provision thus inserted in the Kansas- 
Nebraska bill? I say the people had it before. 
Suppose the Missouri restriction had continued 
up to the present day, providing that Slavery 
should not exist north of a certain line, 36° 30''; 
and at the present day, while that restriction was 
in operation, the people of Kansas should assem- 
ble and adopt a State Constitution, by which 
they should authorize the introduction and sale 
of slaves, and then should send that Constitution 
to us, and we should admit them on that Consti- 
tution : should we not repeal the Missouri re- 
striction pro tanto 9 Certainly we should. I say, 
then, that under this resolution of the Cincinnati 
Convention, which was the creed of the Demo- 
cratic party. North and South, no power what- 
ever was conferred on the people of the Territo- 
ries in regard to that particular matter of popu- 
lar sovereignty. They had none that did not 
exist before. No boon was conferred. 

Therefore, I say that I believed it was not onlj 
a pretence at the time, but it was a fraud and a^ 
snare ; and when the people of the free States 
were deluded into the idea that by the repeal of 
the Missouri compromise line they were to have 
the power given to the people of the Territories 
to establish or reject Slavery, as they pleased, 
the snare was, that the Democratic party was to 
put it to them next, that they should not have 
the power to admit or reject Slavery, as they 
pleased, except when they came to form a State 
Consti|tution, and Slavery had overrun them ; and 
that when, by such proceedings as the present, 
they have been bound hand and foot, and cast 
into the burning fiery furnace of Slavery, then 
they might have the privilege of doing — what? 
Simply what they could do before — form a Con- 
stitution to suit themselves ; send it to Congress ; 
and if Congress adopted it, then repeal the Mis- 
souri restriction. It went nothing further than 
tliat, and that was the point I made ; and to that 
point no answer has been given. 

I was endeavoring to illustrate the idea th.at 
there was an intention in this matter — an inten- 
tion demonstrated from the absence of all possi- 
ble motive except to force Slavery into the Terri- 
tory — from the nature of the provisions sur- 
rounding the Territory with slave States ; from 
the proceedings that have taken place since in 
the Territory ; and from the principle which 
was adopted as a cardinal point in the creed of 
the great Democratic party, viz : that the people 



19 



should not have the power to reject or exchide 
Shivery until they came to form a State Consti- 
tution, and, in the mean time, that everybody 
from the slave States might carry slaves there 
when and how they pleased, to be there recog- 
nised and protected by the Constitution of the 
United States. Sir, had that doctrine been an- 
nounced at the time the clause was inserted, had 
it been expressed in words, that we intended to 
leave the people perfectly free, only when thev 
form a State Constitution, to establish or reject 
Slavery, as they please, would it not have been 
laughed to scorn, as conferring no new advantage 
on the people of the Territories — nothing that 
they had not before ? Certainly it would. ' 

The Senator from Georgia said this measure 
had been before the jjopulur forum, and the pop- 
ular forum had decided in its favor. How has it 
decided ? It hjis decided under these pretences, 
these delusions, these frauds, practiced upon it 
with regard to what was the absolute meaning 
of that clause. What privilege was conferred on 
the people by it ? No other than that which I 
have spoken of ; and it is idle to talk of the 
matter having been settled by the great tribu' al 
of public opinion. There has been no such opin- 
ion expressed, because there have been no points 
except the two I have mentioned, before the 
people, one of which was abandoned when it 
had served its purpose, and the other carried in 
such a manner as to force Slavery on the people 
of Kansas, without any power left in the people 
to act on the subject, directly or indirectly. 

I desire, before concluding, to advert to one 
other position which was taken by the Senator 
from Georgia, and which has been alluded to 
again to-day — that this matter has been settled by 
the judicial forum. It is said that it has been car- 
ried to the Supreme Court of the United States, 
and settled there. Does the honorable Senator 
from Louisiana, as a lawyer, undertake to tell rae 
that the question has been settled by a judicial de- 
cision in that court ? Did that question ever arise 
and present itself to the mind of the court with 
reference to any necessity of the case? To what 
extent does the honorable Senator, or any body 
else who is a lawyer, undertake to say that the 
decision of the court is binding? It is binding so 
far, and so far alone, as it can issue its mandate. 
Its opinion is of force only upon the question 
which settles the cause. Am I bound to recognise 
opinions that may be advanced by any set of 
judges, in any court, simply because, after they 
have decided a cause, they undertake to give 
their opinions ? They may be bad men, they 
may be weak men, but their mandate in the 
cause before them must be obeyed ; and I will 
go as far and as readily as any man to obey the 
mandate of any court to which I am bound to 
render obedience ; and I am bound to render 
obedience to the Supreme Court of the United 
States ; but when they undertake to settle ques- 
tions not before them, I tell them those questions 
are for me as well as for them. When they un- 
dertake to give opinions on collateral matters 
which are not involved in their decision, and 
which they are not called upon to decide, I tell 
them they are men, like myself and others, and 



their opinions are of no value, except so far as 
they enforce them by sufficient and substantial 
reasons ; and if they give bad reasons or bad 
logic, I would treat them as I should anybody else 
who would try to convince my judgment in sucti a 
way. I have good authority on tbis point ; and 
it is authority that I present for the special ben- 
efit of those who are disposed to read us lectures 
lately on the subject of bowing to the opinion of 
the court. I have a law book in my hand, from 
which I wish to read one '"r two passages. The 
Supreme Court of one of the States of this Union, 
in giving the opinion which I hold in my hand, 
in speaking of the action of the Supreme Court 
of the United States, says : 

'The disregard of this court to the known will of the 
makers of ihe < oiisiitution, a* to the rule of cor'st uction, 
i^ equally exhilii'ed in a number of o'hfr cases ; especial- 
ly in ihe c-'ses of Cohen vs. Virginia, and Worcester and 
Butler vs. Georgia, in which it held that a Plate miaht be 
sued, nolwiihstaiiding the clear manifes-talion of the will 
of {he makers of the Constitution, in the smi ndmeni of it 
to which I have heretofore refTred. tha' the Constitution 
was not to be so construei as tomak-". a S'ate sueable. 

'• But are not the decisions of the Supreme Court of the 
United Slates to ifovern this, ps to the rule cf ;nstruing 
the Constitution? They are not, any more than the decis- 
ions of that court are to be governed by the decisons of 
this. 

"The Supreme Court of the United S'ates has no juris- 
dic'io over this court, or over any department of tha 
Government of this Slate." 

I wish to read another passage showing the 
opinions entertained by the learned court which 
gave the decision before me : 

" But say that I atn wrong in this opinion ; s'i'l, I deny 
that the decisions of th^^ Supreme Court referred to are 
precedent* to eovern tl'is court 

" Th<ise decisi jus were mer • partisan deci-ions— to be 
overruled in the court which made ihem as soon as a 
majoriiy of t'le mi^mhers of th ■ court sh'.uld be of diffi rent 
noliiics from the poliiics of the memlieis who marie the 
decisions. The doctrine that a neo sion of ilie Supreme 
Court of the U it d Stales is lO di ■tat'- a man's politics to 
hm. is a doctrine avowed by a le w in this country. 
.Such a d"ictrine would be an easy means of p'"petuating 
a dynasty of )^riiiciples, however false and wicktd. All 
iha' would have to be done, would i>e to st <rt with men 
of tl.ose principles. Their decisions wou'd do ihe rest. 
Whatever ihey ssid the Constitution mtant, the people 
wou'd have to vote ii to mean. Parlies, on conslilutionai 
questio s, could not arise. 

'• But »re these mere poiilical decisions, and made by 
partisan judges?' 

Then the court go on to review the history of 
the judges of the Supreme Court of the United 
States, beginning with Judge Marshall, to show 
that they are mere partisans. There is another 
little extract I should like to read, 

Mr. STUART. What court is it, from the 
opinion of which the Senator is reading ? 

Mr. FESSENDEN. I will give my authority 
after I have read what the court say : 

'■ Now. partisan decisions may do to bind the rolitical 
parly which the makers of ihem happen to belong to. 
They certainly bind no oiher party. And this has Deen 
III'' uniform praclii'e of all parties in thi- country. The 
Supreme Court said a bank is consiiiutiont I ; yei, bank 
charters have been vetoed by ihree several Presidents: 
Miiriison. Jackson, Tyler." 

The same Court say they received a mandate 
from the Supreme Court of the United States, 
but treated it with contempt. Sir, that is the 
opinion of the Supreme Court of Georgia, deliv- 
ered in the case of Padelford & Co. vn. the city 
of Savannah, in the fourteenth volume of Georgia 
Reports, page 438, 



20 



If these are mere party decisions, let us under- 
stand it. It P'^ems that when the decisions are 
ouf Wi:y by ttie Supreme Court of the United 
Statets gentlemen of the South say, "the judcres 
are partisan judges ; tbey cannot settle constitu- 
tional questions for us ; those ar-e political mat- 
ters.' When, however, they undertake extra- 
judicially to give opinions not called for by the 
point before them; to lay down doctrines at 
variance with the whole history and preceden's 
of the country from its very foundation, to over- 
turn the decisions of their own predecessors, 
greater men than ever they can hope to be, and to 
rtversc all the decisions of the legislative depart- 
ment of the Government, on questions of a polit- 
ical character and description, on their own mere 
8ay-fo, we are told all this is law. 
/ Sir, I was perfectly atvare, from the course of 
; proceeding, what this decision would be. When 
I saw the dictum, or the dogma, if you please to 
call it so, laid down in the Cincinnati Platform, 
that there was no power in the people of a Ter- 
ritory to exclude Slavery, and when I saw that 
that question had been brought to the Supreme 
Court of the United States, and that the Supreme 
Court, after hearing the argument, had adjourned 
from one day before the election of President 
over to another day after the election of Presi- 
dent, I knew what the strength of the Slavery 
party was; and I felt what the decision was to 
be ; and I felt, as well, and I do not hchitate to 
say it here, that had the result of that election 
been otherwise, and had not the party triumphed 
on the dogma which they had thus introduced, 
we should never have heard of a doctrine so 
utterly at variance with all truth ; so utterly d.'S- 
titute of all legal logic ; so founded tin error, and 
unsupported by anything like argument, as is 
-the opinion of the Supreme Court. 

I should like, if I had time, to attempt to dem- 
onstrate the fallacy of that opinion. 1 have ex- 
amined the view of the Supreme Court of the 
United States on the question of the power of 
the Constitution to carry Slavery into free terri- 
tory belong'ing to the United States, and I tell 
you that I believe any tolerably respectable law- 
yer in the United States can show, beyond all 
question, to any fair and unprejudiced mind, that 
the decision has nothing to st;ind upon except 
assumption, and bad logic from the assumptions 
made. The main proposition on which that de- 
cision is founded; the corner-stone of it, without 
which it is nothing, without which it fails en- 
tirely to satisfy the mind of any man, is this: 
that the Constitution of the United States recog- 
nises property in slaves, and protects it as such. 
I deny it. It neither recognises slaves as prop- 
erty, nor does it protect slaves as property. 

Fortunately for my assertion, the Supreme 
Court, in making that the very corner-stone of 
their decision, without which the whole fills, 
state the clauses on which they ground these as- 
sertions. On what do they found the assertion 
that the Constitution recognises Slavery as prop- 
erty ? On the provision of the Constitution by 
which Congress is prohibited from passing a law 
to prevent the African slave trade for twenty 
years ; and therefore they say the Constitution 



recognises slaves as property. Will not anybody 
see thai this constitutional provision, if it works 
one way, must work the other ? If, by allowing 
the slave trade for twenty years, we recognise 
slaves as property, when we say that at the end 
of twenty years we will cease to allow it, or may 
cease to do so, is not that denyng them to be 
property after that period elapses? Suppose I 
yield to the court all the force they demand, and 
admit that here is a distinct recognition that this 
is property, because we recognise that the Afri- 
can slave trade may exist for twenty years; yet, 
when we say that after that period has elapsed 
that protection shall no longer exist, do we not 
say that after that period of time it no longer is 
property, nnd ceases to be at the expiration of 
twenty years ? Certainly, if the argument will 
work the one way, it must work the other. If 
you derive the power under the Constitution, be- 
cause for twenty years it is property, jou lose it 
vrhen the twenty years elapse, by the same meth- 
od of argument, 

Mr. MASON. That is nn assumption. 

Mr. FESSENDEN. That is my argument, and 
it is my answer to the assumption of the Supreme 
Court of the United States. If it is an assump- 
tion on my part, it is certainly an assumption on 
theirs. But I lea^■e it to every fair man, on every 
principle of logic. It depends on that, does it? 
That died twenty years after the Constitution 
wtnt into operation. Did not the recognition 
die with it ? Does the Constitution recognise it 
after the twenty years have elapsed ? The pow- 
er is gone. So far as you draw any recognition 
from that clause, it ceased with the expiration of 
the period. 

Again, the court say it is protected as proper- 
ty by the provisions that persons held to service, 
escaping from one State into another, shall be 
delivered up. Are they not spoken of as •' per- 
sons ? " Are they spoken of as property ? Is 
there anything said about their being property? 
Does not that provision of the Constitution apply 
just as well to white apprentices, held under the 
laws of the different States for a term of years, 
as it does to slaves? Will you pretend that, by 
the Constitution of the United States, white per- 
sons, held as apprentices for a term of years, are 
property? Certainly', no such position can be 
maintained. Your argument, if it works at all, 
must go the whole length, and j'ou must find 
that the word " person " means property, and 
may be regularly and legally construed as prop- 
erty. I have not time now to pursue this topic. 

Then, sir, to sum up the substance of my argu- 
ment, I wish to say again, that what I consider' 
this original scheme to have been was to assert 
popular sovereignty in the first place with a view 
of rendering the repeal of the Missouri compro- 
mise in some way palatable ; then to deny it, and 
avow the establishment of Slavery ; then to legal- 
ize this by a decision of the Supreme Court of the 
United States, and claim that it had become estab- 
lished. I sincerely believe that decision of the 
Supreme Court of the United States was a part 
of the programme. It was to be had, if having 
it would avail ; but if not, it would nevei have 
been had. 



21 



Mr. President, the natural result ot all this 
should htivu been foreseen. The honorable Sen- 
ator Iri'Tn Illinois, at this day, interposes bis 
strong iirm lo stay the tide of iSlavery which is 
setting over Kansas Territory contrary to the ex- 
press will of her people. He claims to do so, 
not from any sympathy he has with the general 
subject, but simply for the purpose of carrying 
out what he says is the original intent and mean- 
ing of his favorite bill. From what I have said, 
I think it is perfectly obvious that he might have 
foreseen what the result would be. He has gone 
on, according lo the dictates of his own con- 
science ; first breaking down the barrier which 
kept Slavery out of Kansas ; ne,\t protecting and 
defending every outrage that has been perpetrated 
in Kansas with a view to force Slavery on that 
people, up to the time of this last great outrage, 
when it was attempted to place a Constitution, 
in the shape it was, before the people, and then 
send it to Congress ; and now he stays his hand 
here. Why, sir, with what a vain hope ! Docs 
the honorable Senator think he can take the 
prey from the tiger, and not himself be torn 7 
When was Slavery ever known to stay its march 
over a free country, unless forced to do so ; and 
when it had seized it when was it ever known 
to let go its hold ? It is a part of the system to 
pay nothing at all for involuntary servitude ; 
and if the service is voluntary, experience has 
shown that it must be unlimited, unquestioning, 
etei'nal. To hesitate is to lose all ; to stop, is to 
die. The experience of greater men than the 
Senator from Illinois, and of many smaller ones, 
might have taught him that lesson. 

Sir, I say that he and the friends who stood 
by him, in repealing the Missouri compromise 
at the time it was repealed, should have known 
what the result was to be, should have known 
that as the design was to force Slavery into Kan- 
sas, so Slavery would never leave Kansas unless 
it was driven out by force. They should have 
understood what the result was to be ; and it is 
not enough for them to say now, that they do 
not, and did not understand it. Well might they 
quote the language of the greatest poet of this 
century, and say : 

" The thr.riis which I have reaped are of the tree 
I pltiiittd ; they have torn me, and I ble-d. 
I should have known wha'. fruit would spring from such 
a seed." 

But, sir, what is to be the remedy for all this? 
What is promised us? The President tells us 
we are to have peace when this Constitution is 
adopted, and Kansas comes into the Union as a 
slave State. He speaks contrary to all philoso- 
phy. Have we ever had any peace for the last 
four years on this question ? Has this country 
been a peaceful country during that time ? The 
initiation was only then ; and when this matter 
was initiated, when the Missouri compromise 
was repealed, did you not witness in this coun- 
try an excitement which would not die ? And yet 
we are told now, consummate the iniquity, carry 
out the cheat, repudiate popular sovereignty, get 
a decision from a Slavery court that the Con- 
stitution (shame to it, if so) not only recognises, 
but protects Slavery on free soil, force Slavery 



on the people of Kansas, by presenting them two 
Constitutions and telling them to choose one of 
them, for they shall go no further, and then we 
shall have peace! 

Sir, let me tell the President of the United 
States, and all others, that the opposition to 
Slavery in this country is now a sentiment, an 
idea — not to Slavery as it exists in the States, 
not a desire to interfere with your institutions 
anywhere; but a determination, if possible, to 
arrest its progress over the free territories of this 
country, because it is believed to be a curse. 
Altb.ough that sentiment was covered up in the 
ashes ot the compromise of 1850, buried so deep 
that it seemed as if-it would never again spring 
into life, you yourself exhumed it ; you added 
fuel to tlie sparks that were buried; you kindled 
that sentiment into a flame; you have been heap- 
ing combustible material on it from that day to 
the present, until at last you are in a fair way to 
make it a conflagration. Upon you be the con- 
sequence, if it be so. It is not for the President 
to cry "Peace!" at, the consummation of an out- 
rage, when the very beginning of it excited the 
dctcftation of the community in which he was 
born and bred. 

But, sir, we go further than that. That is to 
bo the consequence on the one side. What is to 
be on the other? We are told that we are to 
have a crisis, and the Union is to be dissolved. 
I expressed iny opinion on that topic four years 
ago. "We have had resolutions in the newspa- 
pers from the State of Alabama, that if Kansas 
shall not be admitted tinder the Lecompton Con- 
stitution, it would be time to look about and see 
how this Union could hold together. We have 
had it started in one or two other of the States 
ot the South. We have had it from the honora- 
ble Senator from Mississippi, [Mr. Brown,] and 
from other Senators. They tell us that then will 
be a crisis; the moment the people of this coun- 
try get divided into parties, North and South, on 
a question that is important to them, and the 
people of the North triumph at the polls under 
the Constitution, then the timp has arrived, the 
crisis has come, when the Union is to be dis- 
solved ! Sir, if I did not think it was to be a 
Tery serious matter in some respects, I could 
laugh at this idea. At any rate, it reminds me 
of a story familiar to all of you, probably, though 
I never saw it until yesterday. 

This disposition, which gentlemen have on all 
occasions, to get up a crisis whenever anything 
looks against their peculiar view of a subject, 
and to inform us that the time has arrived, with 
the idea that people can be frightened from their 
propriety, is illustrated by a story which I saw in 
the newspapers, something like this: A celebra- 
ted general in the last war is said, in one of the 
battles on the advance to the city of Mexico, to 
have rode up to Captain Duncan, who was in 
charge of a battery, and, with a very grave and 
sober face, told him : '' Captain Duncan, hre ; 
the crisis has arrived." Duncan turned to his 
men, with matche.'^ all lighted and ready, and 
gave the order to hre. An old ariiller_v man 
walked up to him, and sai i : '■ Captain, I do not 
see any enemy within range of our guns; what 



22 



shall we fire at?" "Fire at the crisis,'' was the 
response; •' did you not hear the General say the 
crisis has come? Fire at that." [Laughter.] 
So it is with gentlemen, I think, in reference to 
this matter. They are always charged and ready 
to fire at the crisis. 1 believe it has arrived half 
a dozen times within my recollection. 

What I wish to say on that point is, that I 
look on it with great seriousness, but without a 
particle of apprehension. We in the free States 
have rights under the Constitution of the United 
States, and we have determination enough to 
enforce and sustain them. We are not to be 
driven from the position wfe have assumed by 
any threats of a disruption of the Union. We 
have no particular pretentious exclamations to 
utter with regard to our great attachment to it. 
Let that attachment be proved by our works. 
We will stand by the Union of this country so 
long as it is worth standing by; and let me say 
to gentlemen, that the moment the time arrives 
when it is to be used as an argument to us, 
"you muot jield- on a question which you con- 
sider vital to your iiUerest and your rights, or we 
shall take measures to dissolve the Union," my 
answe* is, that if we do yield, the Union has 
ceased to have any value for me. So long as I 
stand upon American soil, a freeman, with equal 
rights with others, and power to enforce them 
according to my ability, unrestricted, unrestrain- 
ed, and unterrified, too, this Union is valuable 
to me; 'but when the hour comes when that 
privilege no longer exists, when I hold my rights 
by the tenure of yielding to weak fears, I am 
willing to see any consequences follow, so far as 
I am concerned, or so far as my people are con- 
cerned. Let not gentlemen indulge themselves 
with the hope that nil these resolutions passed 
by Southern Legislatures about dissolving the 
Union, and all these mass meetings held for the 
same purpose, and all intimations thrown out 
here to the same eilcct, are to produce any pos- 
sible result, so far as the determination of Free 
State men is concerned on this question. 

The Senator from Mississippi spoke of compro- 
mises that had been made, and said he wanted 
no more compromises. Sir, I want no more com- 
promises on this matter. There is no room for 
compromises. I agree with him that there have 
been compromises enough. As addressed to a 
Northern man, (if the Senate will allow me to 
quote poetry again, and I shall not trouble them 
much in that way,) it means this, and this 
only: 

" Northward it haih this sense alone, 
Ti at \ou, your cojiscience blinding, 
SKoul bow your foyPs nose lo the stone. 
When Slave.ry feels like grinding '' 

Sir, I wish to be ground no more under such 
compromises. The question that is presented to 
the people of this country is a simple question : 
Shall Slavery, with all its blighting and all its 
political power, be extended over the free Terri- 
tories of the Union? Not by my consent. Never 
will I compromise upon one single point, so far 
as I am individually concerned, that will allow 
what I consider to be a death blow to all the 
free princioles of our institutions to be extended 



over orie solitary foe', of fr.e soil beneath the 
circuit of the sun. 

Subsequently, on the same day, in reply to 
Mr. Davis, of Mississippi, Mr. FESSENDBN said: 

My physical ability is not very great at any- 
time, and what I have is well nigh exhausted by 
the 1( ngth of time during which I have been ob- 
liged to trespass on the Senate. In what I have 
lo reply, therefore, to the Senator from Missis- 
sippi, I must necessarily confine myself to a very 
brief period. I may take occasion hereafter to 
review what the Senator has now said, in detail. 
And although I have wearied the patience of the 
Senate very much to-day, I suppose it will not 
preclude me from wearying it as much at another 
lime, if I see fit to do so. I am, therefore, not 
particularly alarmed by the threat of the Sena- 
tor that he will proceed, .it some future occasion, 
to treat of what has been said on this side of 
the Chamber to-day, and in which I suppose he 
referred to me, as 1 have said the principal part 
of it. 

But I rise for the purpose of saying that I do 
not recognise his autJaority, in the style which he 
chooses to assume, to lecture me on the senti- 
ments that I choose to advance before the Sen- 
ate. In the first place, I have not attacked the 
institution ot Slavery in the States where it is 
established — I have preached no crusade against 
it. I have expressly disavowed the intention to 
interfere with it, not because I have any fear of 
avowing such sentiments, (if I entertained them,) 
nor because I should hesitate to do so in the 
presence of the honorable Senator from Missis- 
sippi. Sir, when the day comes that I shall shrink 
from stating in this Senate and before the coun- 
try every sentiment that I entertain — every feel- 
ing of my heart — with reference to these matters 
which so miach agitate this country, under the 
fear of man. or what man can say or man can 
do ; whenever such considerations shall induce 
me to hesitate, I will not stay in this body a 
single hour. I should disgrace the noble State 
from which I come, and which trusts me here, if 
I hesitated to speak my opinions as well upon 
this subject as any other. I will not use the 
offensive phrase which has been used here some- 
times with reference to the demeanor of gentle- 
men towards this side of the Chamber, when we 
express our opinions on this subject; but I will 
say to the Senator from Mississippi, most dis- 
tinctly, and to every other Senator, that while 
I intend to treat them with all that respect and 
courtesy which are due from me to them, as 
having the same rights here, and occupying the 
same position, they must accord to me the right 
to speak the sentiments which I entertain, un- 
awed by any comment or any consequences that 
may be intimated from any quarter whatever. 

The Senator chooses to place me in the atti- 
tude of advocating disunion sentiments. I have 
not sung pffians to the Union or the Constitution. 
I do not pretend that my life has been so illus- 
trated by distinguished services to the country 
as the honorable Senator from Mississippi seems 
to suppose his has been. I accord to him all 
the glory and the merit which he may claim for 



23 



himself. I attack not him. I respect his char- 
acter and respect his services ; but, sir, I wish 
him to understand distinctly, that whatever may 
be his superiority over me in those particulars, 
or in any other particulars, on this spot we are 
his peers. I am the equal of any man in my 
rights on this floor, and I will exort those rights 
wherever I choose, within the rules of order, let 
the consequences be what they may in regard 
to me ; and if the time comes when I cannot 
make my hand keep my head, then anybody is 
welcome to take it. Sir, I have avowed no dis- 
union sentiments on this floor, neither here nor 
elsewhere. Can the honorable Senator from Mis- 
sissippi say as much ? 

Mr. DAVIS. Yes. 

Mr. FESSENDEX. I am glad to hear it, then. 

Mr. DAVIS. Yes. I have long sought for a 
respectable man who would allege the contrary. 

Mr. FESSENDEN. I make no allegation. I 
asked if he could say as much. I am glad to 
hear him say so, because I must say to him that 
the newspapers have represented him as making 
a speech in Mississippi, in which he said he came 
into General Pierce's Cabinet a disunion man. 
If he never made it, very well. 

Mr. DAVIS. I will thank you to produce that 
newspaper. 

Mr. FESSENDEN. I cannot produce it, but 
I can produce an extract from it in another pa- 
per. 

Mr. DAVIS. An extract, then, that falsifies 
the text. 

Mr. FESSENDEN. I am very glad to hear the 
Senator say so. I made no accusation. I put 
the question to him. If he denies it, very well. 
I only say, that with all the force and energy 
with which he denies it. so do I. The accusa- 
tion never has been made against me before. 
On what ground does the Senator now put it? 
On the ground that I assert that I am opposed 
to the extension of Slavery over free territory, 
and have asserted that the repeal of the Missouri 
compromise, and the events which have followed 
it, have been an outrage on the rights of the free 
States and on the Territory of Kansas, and that 
I will continue to agitate that subject, so far as 
that Territory is concerned, so long as I have 
the power to agitate upon it with any effect. Is 
that disunion? Does that prove his allegation? 

Mr. DAVIS. Does the Senator ask me for an 
answer ? 

Mr. FESSENDEN. Certainly ; if the Senator 
feels disposed to give one. 

Mr. DAVIS. If you ask me for an answer, it 
is easy. I said your position was fruitful of 
such a result. T did not say you avowed the 
object — nothing of the sort; but the reverse. 

Mr. FESSENDEN. I am very happy, then, to 
be corrected in that particular. I understood 
the Senator to charge me distinctly with disunion 
sentiments, as undermining the Constitution of 
the United States. 

Mr. DAVLS. As sentiments that had that 
effect. 

Mr. FESSENDEN That is a matter of opin- 
ion, on which 1 have a right to entertain my view 
as well as the Senator his. That I am under- 



mining the institutions of the country by attack- 
ing the Supreme Court of the United States! I 
attack not their decision, for they have made 
none ; it is their opinion. My belief is, my posi- 
tion is, that that very opinion, if carried into 
practice, undermines the institutions of this 
country. Sir, the institutions of this country 
stood firm ; they stood upon the doctrines of 
Freedom, not of Slavery. When the Supreme 
Court of the United States lay down the doc- 
trine that the Constitution of the United States 
recognises Slavery, I do not deny it. The posi- 
tion I assumed was, that the Constitution of the 
United States does not recognise slaves as prop- 
erty ; does not protect them as property. It rec- 
ognises Slavery as an institution existing in the 
States ; it provides for certain contingencies ; 
those contingencies I neither repudiate nor deny, 
nor attempt to cavil at ; but I do deny the posi- 
tion which is assumed by the Supreme Court ci" 
the United States, applied to property as recog- 
nised by the Constitution beyond the limits of 
those States. 

I assume, as I have always assumed, that in 
the Territories no State has any right. There is 
no such thing as the right of States in a Terri- 
tory. The rights, if they exist, are the rights of 
the peo))!e of the States — personal rights ; and 
when an individual, a citizen of a State, leaves 
that State with a design to go to another, and 
passes V'eyond its limits, he loses every right 
which he had as a citizen of that State, for he 
ceases to be its citizen. It being a personal 
right, if you wish to put it on that ground, and 
wish to divide this Territory according to the 
interest the people have in it, in proportion to 
numbers, now much, I ask, would the slavehold- 
ers of the Union be entitled to? How much 
would the half a million of slaveholders, with 
their wives and children, be entitled to out of 
the Territories of the United States, when put 
against the more than twenty millions of free 
people, who have the same rights with them- 
selves ? And yet the doctrine is taught here, 
that because in some of the States of the Union 
.Slavery exists, therefore we are to take the num- 
ber of States, and on the ground of State rights 
claim that the territory is to be equally divided, 
with equal privileges. 

Sir, it is a personal privilege. So far as you 
may be a slaveholder, and desire to go to the 
Territories, you nave all the privilege which be- 
longs to you as an individual. If the Constitu- 
tion enables and authorizes you to carry slaves 
there, take them there and try it. I deny the 
fact. It never was so held until very recently, 
when individuals of the Supreme Court gave 
that opinion. When Mr. Calhoun broached the 
doctrine in the Senate of the United States, it 
was received with derision, and it died. It hardly 
had an existence long enough to have it said 
that it lived ; and when Mr. Calhoun, at a later 
day, said, as he did say, that if the Supreme 
Court should decide that the doctrine was not a 
true one, that decision would be entitled to no re- 
spect, to no observance, pray, was not he uttering 
sentiments undermining the Constitution of the 
United States and our institutions? He said 



24 



U en, ill H 8!i|ipofed case, what I say now. He 
tiiitl tiuii. it liie tJupreme Court established the 
(toctriue that the Constitution did not carry 
Slavery into the Territories, that opinion of theirs 
would be entitled to no respect. I say they have 
decideii according to his wish, and that decision 
is .entitled to no respect; lor it is opposed to all 
the precedents of this Government, and opposed 
to all the doctrines which lie at the foundation 
of our institutions, and opposed to the previous 
decisions of that court. 

Now, the Senator says we are aggressive. 
Pray, who began the aggression ? Was not this 
country at peace after the compromise of 1850? 
Was not the country quiet? Who reopened the 
agitation? \\ ho introduced the torch of discord 
among the people of these States ? Those who 
advocated the repeal of the Missouri restriction. 
You oi)ened it at a time of prot'ound peace, not 
we; and we warned you then, that if you insist- 
ed on it, these flames would be kiudled again, 
and God only knew hov/ long they would burn. 
That aggression has been going on in Kansas 
from that day to the present. It has not ceased 
even now ; and this issue is presented here in 
such a shape that the Senator from Illinois is 
compelled, from a sense of justice and duty, and 
regard to his own honor, to oppose the further 
perpetration of the outrages that have taken 
place there. 

You say that you make no aggressions on us ; 
you attack none of our interests. Lo.A fit the 
attack made on them at this very session. The 
fishing interest is an important m-.itter in this 
country, protected by the Government of the 
Uniteii States. Has there been no attack on that? 
Has not the honorable Senator from Georgia giv- 
en notice of a bill to repeal all the navigation 
laws of the United States ? Has he not put that 



question oefore a committee? Is that no attack 
on the interests of the North ? I am speaking of 
their interests. I do not feel disposed to argue 
that matter now, but I regard it as only the be- 
ginning. I know not how far it will go. I did 
not allude to it iu the speech which 1 made; 
but if the Senator asks me for proof of any de- 
sire on the part of the Southern people to attack 
the interests ot the North, all I have to say is, 
look at your policy. You have broken down 
our manufactures as far as you could. Some of 
you are now seeking to break down our com- 
merce, and you ask us what you have uone, and 
when will we cease our aggressions? Sir, we 
have been on the defensive from the beginning. 
We were on t!ie defensive in 1854, when the 
.Missouri compromise line was repealed. We 
have been on the defensive ever since; we stand 
on it to-day. If tiie consequences are injurious 
to you, blame yourselves for that; we have had 
no hand in them ; we warned you from the be- 
ginning. 

Mr. President, 1 did not think I could be drawn 
out to the extent to which I have been, but I 
felt It my duly to repel the imputation that I 
thought was made on me by the honorable Sen- 
ator from Mississippi. What my sentiments may 
lead to, I do not know. They are such senti- 
ments as 1 honestly entertain, such as I have an 
undoubted right to express, and I do not feel 
rallied upon to resign my seat here, although the 
Imuorable Senator from Mississippi intimates 
that the opinions which I have advanced must 
be the product eitlier of malice orof ignorance — 
and I would nilher be accused of the latter than 
the former. I beg him and the Senate to un- 
derstand that I believe I know enough to express 
clearly the sentiments I do entertain, and to up- 
hold my right to express them. 



WASHINGTON, D. C. 

BUELL & BLANCHARD, PRINTEPvS. 
1858. 



